Opinion
Nos. 44546 and 44565.
March 14, 1955.
Consolidated appeal from an order of dismissal and mandamus to compel respondent circuit judge to take jurisdiction. An action was filed in Boone County in bad faith to prevent the defendant therein from filing an action for personal injuries in the City of St. Louis. The Circuit Court of Boone County had discretion to stay the action in Boone County until the action in the City of St. Louis had been determined. Respondent circuit judge erroneously dismissed the action filed in the City of St. Louis and is directed to take jurisdiction of such action.
1. VENUE: Action Filed in Bad Faith: Right to Stay. Where an action was filed in Boone County in bad faith and at the instance of an insurance company to prevent the defendant from filing an action for personal injuries in the City of St. Louis, the Circuit Court of Boone County had discretion to enter an order staying the action in that county until the action in the City of St. Louis had been determined.
2. VENUE: Mandamus: Circuit Judge Directed to Take Jurisdiction. Respondent circuit judge had jurisdiction of the action filed in the City of St. Louis and said judge is directed to take jurisdiction of said case. The order of dismissal is reversed and remanded.
REVERSED AND REMANDED AND WRIT OF MANDAMUS MADE PEREMPTORY.
William H. Becker, Robert C. Smith, Jr., and Roberts P. Elam for relator; Clark Becker of counsel.
(1) Where a circuit judge, as here, wrongfully misconceives his jurisdiction and refuses to exercise the jurisdiction given by law, mandamus will issue to compel him to proceed. State ex rel. McClure v. Dinwiddie, 358 Mo. 15, 213 S.W.2d 127; State ex rel. Fielder v. Kirkwood, 345 Mo. 1089, 138 S.W.2d 1009; State ex rel. Wabash Railroad Co. v. Shain, 341 Mo. 19, 106 S.W.2d 898; State ex rel. Fleming v. Shackelford, 263 Mo. 52, 172 S.W. 347; State ex rel. General Motors Acceptance Corp. v. Brown, 330 Mo. 220, 48 S.W.2d 857. (2) Mandamus will lie to compel the setting aside of an order previously entered, where a circuit court has refused to proceed with a case, as has the respondent herein. State ex rel. General Motors Acceptance Corp. v. Brown, 330 Mo. 220, 48 S.W.2d 857; State ex rel. Fielder v. Kirkwood, 345 Mo. 1089, 138 S.W.2d 1009; State ex rel. McClure v. Dinwiddie, 358 Mo. 15, 213 S.W.2d 127; Art. V, Sec. 4, Constitution of Missouri 1945. (3) The respondent judge of the Circuit Court of the City of St. Louis has jurisdiction to hear and determine the relator's suit for damages filed in the Circuit Court of the City of St. Louis, formerly pending before him, and wrongfully misconceived a lack of jurisdiction because: Where a prior action has been terminated or stayed by order of a court of competent jurisdiction, an action subsequently filed in another court is not subject to dismissal or abatement on the grounds that a prior action is pending. Lawyers Cooperative Pub. Co. v. Sleater, 130 S.W.2d 192; In re Gaebler's Estate, 248 S.W.2d 12; State ex rel. U.S. Fire Ins. Co. v. Terte, 351 Mo. 1089, 176 S.W.2d 25; City of Caruthersville v. Cantrell, 230 S.W.2d 160; Warder v. Henry, 117 Mo. 530, 23 S.W. 776; Trimble v. Kansas City P. G.R. Co., 180 Mo. 574, 79 S.W. 678; Karnes v. American Fire Ins. Co., 53 Mo. App. 438; Martin v. Richmond Cotton Oil Co., 194 Mo. App. 106, 184 S.W. 127; Cassidy v. Cassidy, 160 N.Y.S. 860; Porter v. Kingsbury, 77 N.Y. 164; Sippel v. Fond du Lac, 184 Wis. 607, 200 N.W. 459; Crosley Corp. v. Westinghouse Electric, 130 F.2d 474; 1 C.J.S., Actions, sec. 133, p. 1407, notes 94 and 95. (4) A prior action is considered terminated so far as being grounds for abatement on the basis of a prior action pending, where, as here, it appears that it has been effectively discontinued. Lawyers Cooperative Pub. Co. v. Sleater, 130 S.W.2d 192; Cassidy v. Cassidy, 160 N.Y.S. 860; Porter v. Kingsbury, 77 N.Y. 164; Sippel v. Fond du Lac, 184 Wis. 607, 200 N.W. 459. (5) Under the rules of the common law, abatement of a suit is a complete termination, and therefore can have no effect upon a suit subsequently filed by one of the parties, and cannot be used to abate or dismiss the second action on the grounds that there is a prior suit pending. Crane v. French, 38 Miss. 503; Spector v. Northwestern Ins. Co., 8 Pa. Dist. 510; Witt v. Ellis, 2 Coldwater (Tenn.) 38; Ex parte Bennett, 231 Ala. 223, 164 So. 298; Smith v. Phlegar, 73 Ariz. 11, 236 P.2d 749; 1 C.J.S., Abatement and Revival, sec. 2, p. 29; 1 C.J., p. 26, note 49; 9 C.J., p. 233, note 25. (6) The respondent has failed to accord proper respect for the determination of the Circuit Court of Boone County and of the Supreme Court of Missouri, since the Circuit Court of Boone County has the power to abate or stay the filing of a fraudulent suit and its action thereon was entitled to be given full faith and credit by the respondent. State ex rel. U.S. Fire Ins. Co. v. Terte, 351 Mo. 1089, 176 S.W.2d 25; City of Caruthersville v. Cantrell, 230 S.W.2d 160; State ex rel. Mueller Furnace Co. v. Buckner, 229 S.W. 392. (7) Not only does the respondent not possess jurisdiction to decline to hear this action on its merits, but as a matter of fact, his order of dismissal shows that he did not in fact purport to exercise any judicial discretion in dismissing the St. Louis action. State ex rel. McClure v. Dinwiddie, 358 Mo. 15, 213 S.W. 127; State ex rel. Fielder v. Kirkwood, 345 Mo. 1089, 138 S.W.2d 1009; Art. V, Secs. 4 and 5, Constitution of Missouri 1945; 14 Am. Jur., Courts, p. 298; 30 Am. Jur., Judgments, p. 937; Brannon v. Brannon, 220 N.Y. 484, 1 N.E.2d 975. (8) Where the plaintiffs in the Boone County action alleged damages for baseless or unfounded claims for the sole purpose of coming within the court's discretion, such act is ample grounds for the court to abate or stay the pending action, pending the determination of a subsequent suit properly filed in another jurisdiction. French v. Jeffries, 149 F.2d 255; Greene County Bank v. J.H. Teasdale Comm. Co., 112 F. 801; Moore v. Thompson, 44 N.C. 221; Little v. Woodbridge, 1 Tex. App. 154[ 1 Tex.Crim. 154]; State ex rel. U.S. Fire Ins. Co. v. Terte, 351 Mo. 1089, 176 S.W.2d 25. (9) Jurisdiction must be honestly and fairly procured and if it is contaminated by fraud or trickery, it will not be exercised, or the proceeding may be stayed or dismissed because the plaintiff has forfeited his right and standing in court. Byler v. Jones, 79 Mo. 261; Capital City Bank v. Knox, 47 Mo. 333; 14 Am. Jur., Courts, sec. 185, p. 382; Van Horn v. Great Western, 15 P. 562, 37 Kan. 523; Graham v. Ringo, 67 Mo. 324; 1 C.J., Abatement and Revival, p. 34, note 3; 1 C.J.S., Abatement and Revival, p. 40. (10) Where a circuit court of the State of Missouri refuses to proceed on the ground of supposed lack of jurisdiction based upon a misconception of the law as did the respondent herein, mandamus is the proper remedy to compel him to reinstate the cause on his trial docket and to proceed to a determination of the merits. State ex rel. Fielder v. Kirkwood, 345 Mo. 1089, 138 S.W.2d 1009; State ex rel. Harris v. Laughlin, 75 Mo. 358; State ex rel. General Motors Acceptance Corp. v. Brown, 330 Mo. 220, 48 S.W.2d 857; State ex rel. Snow Steam Pump Works v. Homer, 249 Mo. 58, 155 S.W. 405. (11) The Supreme Court of the State of Missouri may take judicial notice of the pleadings or proceedings in a companion case. Rule 1.25, Rules of the Supreme Court; W.A. Ross Const. Co. v. Chiles, 344 Mo. 1084, 130 S.W.2d 524; Knorp v. Thompson, 352 Mo. 44, 175 S.W.2d 889.
F.X. Cleary, C.M. Kirkham and Moser, Marsalek, Carpenter, Cleary Carter for respondents.
(1) The writ of mandamus should be denied because relator has an adequate remedy by appeal, and for that reason mandamus will not lie. State ex rel. v. Thurman, 232 Mo. 130, 132 S.W. 1157; State ex rel. v. Mosman, 112 Mo. App. 540, 87 S.W. 75; State ex rel. v. Hughes, 343 Mo. 827, 123 S.W.2d 105. (2) Respondent properly dismissed relator's petition because at the time it was filed there was pending between the same parties in this state another action in which relator was compelled to seek relief by way of counterclaim. When a court of competent jurisdiction becomes possessed of a cause its authority continues subject only to the authority of a superior court until the matter is finally and completely disposed of; and no court of concurrent jurisdiction may interfere with its action. State ex rel. Sullivan v. Reynolds, 209 Mo. 161, 107 S.W. 487, 15 L.R.A. (N.S.) 963; State ex rel. Davis v. Ellison, 276 Mo. 642, 208 S.W. 439; In re Gaebler's Estate, 248 S.W.2d 12; State ex rel. Mack v. Scott, 235 S.W.2d 106. (3) The Circuit Court of Boone County has specifically retained jurisdiction over this cause of action and has not abated, nor in any way lost or deprived itself of jurisdiction to try and determine the case and to grant full relief therein. Black's Law Dictionary, Fourth Ed., p. 16, p. 1583; Smith v. Phlegar, 73 Ariz. 11, 236 P.2d 749. (4) The claim plaintiff attempted to assert in the instant suit must, under the statutes of this state, be asserted in the Boone County litigation. Sec. 509.420, RSMo 1949; Hayden v. Yelton, 237 S.W.2d 249; Cantrell v. City of Caruthersville, 359 Mo. 282, 221 S.W.2d 471; Keller v. Keklikian, 362 Mo. 919, 244 S.W.2d 1001; State ex rel. Mack v. Scott, 235 S.W.2d 106. (5) The action of respondent herein in dismissing the instant action is in no way a failure to accord full faith and credit to any determination by the Supreme Court of Missouri or the Circuit Court of Boone County. 50 C.J.S., Judgments, sec. 608, p. 32; Funeral Directors Assn. v. Board of Funeral Directors, 22 Cal.2d 104, 136 P.2d 785; State ex rel. Van Hafften v. Ellison, 285 Mo. 301, 226 S.W. 559, 12 A.L.R. 1157; Bannon v. Bannon, 270 N.Y. 484, 1 N.E.2d 975; McDonough v. Garrison, 68 Cal.App.2d 318, 156 P.2d 983. (6) The suit filed by Campbell Sixty-Six Express, Inc., in the Circuit Court of Boone County was properly and legitimately filed for the sole purpose of recovering its loss and damage sustained in said accident. This action was in no way fraudulent or in bad faith. Brinkmann Realty Co. v. Deidesheimer, 201 S.W.2d 503; Secs. 509.420, 506.150, 508.010, 509.490, RSMo 1949.
The above cases were consolidated by order of this court. Case No. 44546 is an appeal from an order in the Circuit Court of the City of St. Louis dismissing plaintiff's petition on the ground that the court lacked jurisdiction because a case was pending in the Circuit Court of Boone County, Missouri, involving the same issues. Case No. 44565 is a mandamus proceeding filed by plaintiff Ryan in this court asking this court to order the respondent judge of the Circuit Court of the City of St. Louis, Missouri, to take jurisdiction of Case No. 44546.
The events leading up to this controversy are briefly as follows: Ryan, while driving a truck on July 1, 1952, in Audrain County, Missouri, was injured when his truck collided with a tractor-trailer combination driven by Charles W. Aldridge, as agent of Campbell Sixty-Six Express, Inc. Ryan, on September 19, 1952, filed a suit for damages in the Circuit Court of Boone County, Missouri. Aldridge, the driver, and Campbell Sixty-Six Express, Inc., owner of the tractor-trailer, were named as defendants. On October 9, 1952, these defendants filed a general denial as their answer. On January 14, 1953, the defendants filed an application for a change of venue from Boone County. Ryan then announced that he would dismiss his suit without prejudice and file a suit in the Circuit Court of the City of St. Louis where the defendant Express Company maintains an office. On February 10, 1953, an answer was filed in the Boone County Circuit Court without leave setting up a counterclaim for defendant Campbell Sixty-Six Express, Inc.
On March 9, 1953, there was filed in the Circuit Court of Boone County a suit against James Ryan, the plaintiff in the original suit. The plaintiffs in this suit were Charles W. Aldridge, Campbell Sixty-Six Express, Inc., and C.W. Lindsey. It was alleged in Count I that Aldridge had been injured in the collision in Audrain County and $1000 was asked as damages therefor; in Count II, Campbell Sixty-Six Express, Inc., alleged that the cargo carried by the tractor-trailer had been damaged and $1000 was asked for such damage. It was alleged in Count III that C.W. Lindsey was the owner of the tractor-trailer which it was alleged was damaged in the accident. For such damage $1000 was asked.
On July 10, 1953, James Ryan filed a suit in the Circuit Court of the City of St. Louis against Campbell Sixty-Six Express, Inc., for $75,000 as damages for personal injuries alleged to have been sustained as a result of the collision and $25,000 punitive damages. (There is a second count in the petition which we need not mention since it does not affect the present appeal.) This is the action which was dismissed by the trial judge and from which this appeal was taken. The order of dismissal was entered on February 10, 1954. This order was set aside on May 7, 1954, and on the same day the order of dismissal was reentered. It will be noted that the case was dismissed after the Circuit Court of Boone County had made an order staying the proceedings in that court awaiting the final outcome of the suit filed in St. Louis.
The order staying the proceedings in the Boone County Circuit Court was made on motion to dismiss filed by Ryan on April 8, 1953, wherein he alleged that the suit was filed in bad faith and for the sole purpose of fixing the venue of a trial. A hearing was had on this motion on October 26, 1953. [130] On November 3, 1953, the Circuit Court in Boone County entered the order staying the action in that court pending the determination of the suit in St. Louis. The court made findings pursuant to the hearing on the motion. To indicate the theory and grounds on which the trial court stayed the proceedings, we quote the following taken from the findings of the court: "Thereafter, on the 9th day of March, 1953 the plaintiffs in this case, being Charles W. Aldridge, Campbell Sixty-Six Express, Inc. and C.W. Lindsey, acting in concert with and at the instance of, and through the attorneys for the liability insurer of Campbell Sixty-Six Express, Inc. did file this action in bad faith for the purpose of depriving James Ryan of the right to file his claim for personal injuries in the city of St. Louis. * * * And the Court doth further find that the said Charles W. Aldridge has stated in his deposition, taken in case No. 41013, that he was not injured in said accident and that conflicting statements have been made in pleadings in this and other causes as to the alleged ownership of said tractor and trailer by Campbell Sixty-Six Express, Inc. or C.W. Lindsey. The Court further finds that in the original petition filed by the said Campbell Sixty-Six Express, Inc. it was alleged that said Campbell Sixty-Six Express, Inc. had been damaged and was liable for damages to the cargo which it carried in its said truck, but that the said Campbell Sixty-Six Express, Inc. has now filed an answer to the written interrogatories served upon it by the defendant stating that it did not in fact suffer cargo damage as a result of said accident, and the Court doth therefore find that the original petition in this cause, Count Two of which was filed in the name of Campbell Sixty-Six Express, Inc., was filed at the instance of the said Campbell Sixty-Six Express, Inc. and the Transport Insurance Company, its liability insurer, solely for the purpose of preventing the said James Ryan from filing his said cause of action for personal injuries in the City of St. Louis, Missouri. And it further appearing to the Court that said James Ryan has stated a cause of action in the suit which he now has pending in the city of St. Louis, Missouri against the said Campbell Sixty-Six Express, Inc. The Court doth therefore determine, after considering the public policy and interest, efficiency, convenience, economy and the bad faith of the plaintiffs herein in instituting said action and in the exercise of its discretion, that it would be to the best interest of justice that Count Two of this petition be stayed pending the prosecution and determination of the St. Louis action, being case number 65973 in Division One of the City of St. Louis, Missouri, and the Court further having determined that it may in its discretion stay further proceedings in this action for the foregoing reasons."
Similar findings were made as to the other two counts of the petition filed in the Boone County Circuit Court by Aldridge, Campbell Sixty-Six Express, Inc., and Lindsey against Ryan.
We are of the opinion that the trial judge of the Circuit Court of Boone County was justified in staying the proceedings in that court pending the outcome of the case filed by Ryan in the Circuit Court of the City of St. Louis. Plaintiff Ryan in the case filed in Boone County Circuit Court had the right to dismiss his case. Only a general denial and an application for a change of venue had been filed to his petition when he notified the court that he desired to dismiss without prejudice. See Section 510.130, V.A.M.S.; 27 C.J.S. 159-162, Sections 7 and 8; Piatt v. Heim and Overly Realty Co., 342 Mo. 772, 117 S.W.2d 327. The order permitting Ryan to dismiss without prejudice and the order striking the counterclaim were entirely proper.
Did the Circuit Court of Boone County have the authority to stay the proceedings in the suit there pending to await the outcome of the suit filed by Ryan in the Circuit Court of the City of St. Louis? As a general rule it is proper to abate or dismiss a second suit where a prior suit is pending in another court involving the same parties and the same subject matter. 1 C.J.S. 58, Section 33. [131] There are exceptions to this rule and the case before us comes within the exceptions. See 1 C.J.S. 109, Section 69; Russell v. Taylor, (Texas) 49 S.W.2d 733, l.c. 736 (1). In the circumstances, the Circuit Court of Boone County did not abuse its discretion by staying the proceedings, awaiting the final determination of the suit pending in the court in St. Louis. State ex rel. U.S. Fire Ins. Co. v. Terte, 351 Mo. 1089, 176 S.W.2d 25, l.c. 30 (7); City of Caruthersville v. Cantrell, Mo. App., 230 S.W.2d 160, l.c. 163 (3); 1 C.J.S. 1405, Section 132.
In 1 C.J.S. 1405, Section 133, we find the general rule stated to be as follows: "The granting of a stay of proceedings being largely a matter for the discretion of the court, the grounds on which a stay will be granted vary according to the requirements of the particular case in which the stay is sought." It will be noted that the stay order was entered by the Circuit Court of Boone County on November 3, 1953. Thereafter, on May 7, 1954, respondent in the mandamus proceeding, the Honorable William H. Killoren, Judge of the Circuit Court of the City of St. Louis, dismissed Ryan's petition on the ground that the court did not have jurisdiction because of the pending action in Boone County. We hold that the court was in error and that it did have jurisdiction to proceed with the case.
It is therefore ordered in Case No. 44565 that our writ of mandamus be made peremptory that respondent judge take jurisdiction of the case of James Ryan v. Campbell Sixty-Six Express, Inc.
In Case No. 44546, wherein Ryan's petition was dismissed, the order of dismissal should be set aside and the cause remanded for further proceedings.
It is so ordered.
Leedy, C.J., Dalton, Hollingsworth, Hyde, Ellison, JJ., and Cave, Special Judge, concur.