Summary
In State ex rel. Baker v. Goodman, 364 Mo. 1202, 274 S.W.2d 293 (1955) the suit (in the underlying case) was filed in Stoddard County by resident plaintiffs against two corporations, neither of which resided in or kept an office or agent in that county. Therein, we considered the provisions of the two venue statutes and concluded that: "In a case where individuals and corporations are sued jointly it is necessary to construe the two sections together for neither expressly fixes the venue in such case, and it is only Section 508.010 that does so by implication.
Summary of this case from State ex Rel. Garrison Wagner Co. v. SchaafOpinion
No. 44398.
November 8, 1954. Rehearing Denied, January 10, 1955.
Mandamus to compel a circuit judge to set aside an order abating an action against a corporation. Two corporations were sued on a cause of action arising in Stoddard County, where the cause of action accrued. There is venue in Stoddard County under Sec. 508.040 RSMo 1949, although the corporations reside in other counties. Prior decisions involving other facts are not controlling. Venue as to one corporation does not depend upon a joint cause of action or upon a cause of action being stated against the other corporation. Respondent trial judge is directed to set aside the order abating the action.
1. VENUE: Corporations: Two Corporations as Defendants: Venue Where Cause of Action Accrued. Plaintiff sued two corporations, one a resident of St. Louis City and the other a resident of St. Louis County. The cause of action accrued in Stoddard County. Sec. 508.040 RSMo 1949 controls over Sec. 508.010 RSMo 1949 and the action was properly brought in Stoddard County where the cause of action accrued.
2. COURTS: Effect of Prior Decision as Precedent: Limitation. The authority of a prior decision as a precedent is limited to those points of law which are raised by the record, considered by the court, and necessary to a decision.
3. MANDAMUS: Venue: Corporations: Action Ordered Reinstated. Respondent circuit judge is ordered to reinstate the action abated against one corporate defendant and proceed as to both corporate defendants.
On Motion for Rehearing.4. VENUE: Corporations: Joint Cause of Action Not Required. Venue in Stoddard County does not depend on a joint cause of action against both corporate defendants.
5. VENUE: Corporations: Cause of Action Against Codefendant Immaterial. Jurisdiction over one corporate defendant in Stoddard County did not depend on a cause of action being stated against the other corporate defendant.
ALTERNATIVE WRIT MADE PEREMPTORY.
Elvis A. Mooney and C.A. Powell for relators.
(1) This court has a general superintending control over the Circuit Court of Stoddard County, Missouri, and may issue and determine a writ of mandamus to said court. 1945 Missouri Constitution, Art. V, Sec. 4; State ex rel. State Highway Commission v. Curtis, 222 S.W.2d 64, 359 Mo. 402. (2) Although no application for a writ of mandamus has been made to a Court of Appeals or to a lower court, this court may take jurisdiction over this cause and issue the writ of mandamus if adequate relief can not be afforded by an appeal or by an application for such writ of mandamus to a Court of Appeals or a lower court. Rule 1.23 of this court. (3) Adequate relief can not be granted by an appeal in this case, since an appeal can be taken only after there is a final disposal as to the defendant Cypress Land Farms Company, a corporation, (State ex rel. Thompson v. Terte, 207 S.W.2d 487, 357 Mo. 229) and relators would be deprived of their right to a trial against both defendants jointly. State ex rel. General Motors Acceptance Corp. v. Brown, 48 S.W.2d 857, 330 Mo. 220; State ex rel. State Highway Commission v. Curtis, 222 S.W.2d 64, 359 Mo. 402; State ex rel. Fielder v. Kirkwood, 138 S.W.2d 1009, 345 Mo. 1089. (4) The question as to whether or not two corporations can be used jointly in the same cause of action under Section 507.040, RSMo 1949 in the county where the cause of action accrued against both corporation defendants, although neither corporation has its place of residence in such county, and although no other defendant resides in that county, has never been decided by an appellate court of this state. It is a question of more than ordinary magnitude and importance and is one of general interest and importance. Therefore, adequate relief cannot be afforded by making an applicat on for a writ of mandamus to a Court of Appeals or to a lower court, and this court should retain jurisdiction in this cause. State ex rel. Whiteman v. James, 265 S.W.2d 298; State ex rel. Hopkins v. Cooper County Court, 64 Mo. 170; 1945 Missouri Constitution, Art. V, Sec. 10. (5) Mandamus lies to compel the trial court to reinstate this cause of action as to the defendant Ferguson Machine Tool Company, Inc., a corporation, since the court wrongfully abated or dismissed the cause of action as to that defendant and refuses to take further jurisdiction as to that defendant. State ex rel. State Highway Commission v. Curtis, 222 S.W.2d 64, 359 Mo. 402; State ex rel. Newell v. Cave, 199 S.W. 1014, 272 Mo. 653; State ex rel. Fielder v. Kirkwood, 138 S.W.2d 1009, 345 Mo. 1089; State ex rel. General Motors Acceptance Corp. v. Brown, 48 S.W.2d 857, 330 Mo. 220; State ex rel. Foraker v. Hoffman, 274 S.W. 362, 309 Mo. 625; State ex rel. Monett Milling Co. v. Neville, 57 S.W. 1012, 157 Mo. 386; State ex rel. Whiteman v. James, 265 S.W.2d 298. (6) Plaintiffs pleaded a cause of action against the defendant Ferguson Machine Tool Company, Inc. that accrued in Stoddard County, Missouri. Peaslee-Gaulbert Co. v. McMath, 146 S.W. 770, 148 Ky. 265, 39 L.R.A. (N.S.) 465; Daniels v. Yarhola Pipe Line Co., 206 S.W. 600; 56 Am. Juris. pp. 38-9, sec. 34; Universal Mills v. Kennedy, 27 S.W.2d 318; Masonite Corp. v. Burnham, 164 Miss. 840, 146 So. 292. (7) Since plaintiffs pleaded a cause of action against each corporation that accrued Stoddard County, Missouri, venue as to each corporation is properly laid in Stoddard County, Missouri, and each corporation could be sued in a separate action by the plaintiffs in Stoddard County, Missouri. Sec. 508.040. RSMo 1949; see cases cited under Point (6) above. (8) Since the Ferguson Machine Tool Company, Inc. has its place of residence in St. Louis County and the Cypress Land Farms Company has its place of residence in the City of St. Louis, and both of them are jointly liable to the plaintiffs, the plaintiffs could have sued them in the same cause of action in St. Louis County or in the City of St. Louis, Sec. 508.010, RSMo 1949; State ex rel. Whiteman v. James, 265 S.W.2d 298. (9) Since the plaintiffs alleged a joint and several liability that accurued in Stoddard County against the defendant Ferguson Machine Tool Company, Inc., a corporation, and the defendant Cypress Land Farms Company, a corporation, in the second count of their first amended petition, the two defendants were properly joined in that cause of action, and the respondent erroneously abated the case as to the defendant Ferguson Machine Tool Company, Inc. Sec. 507.040, RSMo 1949; Willey v. Fyrogas Co., 251 S.W.2d 635; Tanner v. Garner, 255 S.W.2d 158; 14a C.J., p. 799, sec. 2895, n. 68 and n. 70; Bryant v. Bigelow Carpet Co., 131 Mass. 491; Colegrove v. N.Y., etc. R. Co., 13 N.Y. Super 382. (10) There can be a joinder of defendants under Section 507.040, RSMo 1949 in all cases where the defendants are jointly liable, if the venue lies in the county where the action is brought. State ex rel. Bartlett v. McQueen, 238 S.W.2d 393; 1 Carr Missouri Civil Procedure, p. 148. (11) "A statute relating to the joinder of parties should be liberally construed to avoid unnecessary litigation." 47 C.J., p. 72, sec. 148, n. 30. (12) ". . . . . It (the Civil Code) shall be construed to secure the just, speedy and inexpensive determination of every action." Sec. 506.010, RSMo 1949; Bindley v. Metropolitan Life Ins. Co., 213 S.W.2d 387, 358 Mo. 31; Edmondson v. Edmondson, 242 S.W.2d 730; Strohm v. Boden, 222 S.W.2d 772, 359 Mo. 573; Leslie v. Matthewson, 257 S.W.2d 394. (13) Section 507.040, RSMo 1949, allowing the joinder of defendants, is not a venue statute. It is one of procedure only. State ex rel. O'Keefe v. Brown, 235 S.W.2d 304, 361 Mo. 618. (14) Section 508.040, RSMo 1949, provides that: "suits against corporations note it does not say `a corporation') shall be commenced either in the county where the cause of action accrued. . . .". (15) Section 507.040, RSMo 1949 should not be construed as enacting a scheme for joinder not covering every situation, unless susceptible of no other construction. State ex rel. Columbia Nat. Bank v. Davis, 284 S.W. 464, 314 Mo. 373. (16) Although in several cases it has been stated that Section 508.040, RSMo 1949, which provides that "suits against corporations shall be commenced either in the county where the cause of action accrued. . . . ." applies only in cases where a corporation is a sole defendant, e.g.: State ex rel. Columbia Nat. Bank v. Davis, 284 S.W. 464, 314 Mo. 373; State ex rel. Atkinson Paving Co. v. Aronson, 138 S.W.2d 1, 345 Mo. 937; State ex rel. Clay County Bank v. Waltner, 145 S.W.2d 152, 346 Mo. 1138; State ex rel. Henning v. Williams, 131 S.W.2d 561, 345 Mo. 22; State ex rel. Whiteman v. James, 265 S.W.2d 298; McNabb v. National Liberty Ins. Co., 188 S.W.2d 523, 239 Mo. App. 435. None of those cases are dealing with two corporations being sued jointly in a county where the cause of action accrued against both corporations, as in the case at bar. They are cases which hold that where one corporation is joined with another defendant, the suit must be brought in a county where one defendant resides. Therefore, none of those cases are controlling in the case at bar. (17) Since the Cypress Land Farms Company, the intervenor herein, filed its answer to the original petition filed by the relators, as plaintiffs, in the case in the Circuit Court of Stoddard County, and at that time did not raise the question of improper venue as to it, and also filed in that case its motion to make the Ferguson Machine Tool Company, Inc. a third party defendant and also filed a third party petition in that case against the Ferguson Machine Tool Company, Inc., the intervenor thereby waived the right to question the venue as to it in Stoddard County and its motion filed in that court to dismiss for lack of venue should be overruled by that court and it is not entitled to any relief in this proceeding in this court. Lieffring v. Birt. 154 S.W.2d 597; Hockaday v. Gilham, 226 S.W. 991, 206 Mo. App. 132; State ex rel. Thompson v. Terte, 207 S.W.2d 487, 357 Mo. 229; Hembree v. Campbell, 8 Mo. 572; Robinson v. Field, 117 S.W.2d 308, 342 Mo. 778. (18) The petition for declaratory judgment can not in any way affect nor interfere with the prosecution of the suit for damages previously brought in regard to the same subject matter in the Circuit Court of Stoddard County. Finley v. Smith, 178 S.W.2d 326, 352 Mo. 465; New York Life Ins. Co. v. Feinberg, 212 S.W.2d 574; State ex rel. Banner Loan Co. v. Landwehr, 27 S.W.2d 25, 324 Mo. 1142.
Sievers, Reagan Schwartz for respondent.
(1) Section 508.040, RSMo 1949, applies where there is a single corporate defendant. It does not apply where there are two or more defendants. State v. Brown, 235 S.W.2d 304; State v. Williams, 131 S.W.2d 561; State v. James, 265 S.W.2d 298. (2) The Circuit Court of Stoddard County could obtain jurisdiction over the non-resident corporate defendants only by service in compliance with Section 508.010, RSMo 1949. Helfer v. Hamburg Quarry Co., 233 S.W. 275; Liechty v. Kansas City Bridge Co., 155 S.W.2d 297; State ex rel. Thompson v. Terte, 207 S.W.2d 487; Phillipe v. Whittom, 192 S.W.2d 856; Hankins v. Smarr, 137 S.W.2d 499. (3) The decision of respondent sustaining the motion of one defendant to dismiss is an "interlocutory judgment" which can be appealed when the Stoddard County Circuit Court determines the motion of the other defendant to dismiss or otherwise enters a final judgment. Webster v. Sterling Finance Co., 165 S.W.2d 688; State ex rel. Thompson v. Terte, 207 S.W.2d 487. (4) Relators assume that the cause of action accrued in Stoddard County, but whether such cause of action accrued in Stoddard County is a question of fact which is not alone determined by the pleadings. Therefore mandamus is not a proper remedy. Darby v. Weber Implement Co., 208 S.W. 116. (5) The amended petition fails to state a cause of action jointly against the defendants. Since each defendant is charged with separate acts of negligence, this court should look behind the pleadings to ascertain the propriety of the joinder of these defendants. Diehr v. Carey, 191 S.W.2d 296.
Merrill Spitler, James H. Meredith and Owen T. Armstrong for intervenor; Lowenhaupt, Mattingly, Chasnoff Stolar of counsel.
(1) If relators' suit is abated as to Ferguson, it should also be abated as to intervenor. Intervenor's answer constituted appearance only with respect to the causes of action stated in relators' original petition. Bernard, Administrator v. Mott, 89 Mo. App. 403. (2) Upon the filing of relators' amended petition stating different causes of action, the causes stated in the original petition were abandoned. State ex rel. Fechtling v. Rose, 189 S.W.2d 425. (3) If relators' suit is not abated as to intervenor, Ferguson should be reinstated as a party defendant. Ferguson was a party defendant before relators' amended petition was filed. Camden v. St. Louis Pub. Serv. Co., 206 S.W.2d 699. (4) Relators by amending their petition exercised their option to accept Ferguson as a defendant. State ex rel. McClure v. Dinwiddie, 213 S.W.2d 127. (5) Ferguson by filing an answer to the third-party petition waived its right to object to the venue. Sec. 507.080, RSMo 1949; State ex rel. Uthoff v. Russell, 210 S.W.2d 1017; Lieffring v. Birt, 154 S.W.2d 597. (6) Intervenor is entitled to have its third-party claim against Ferguson tried in the same suit in which it is required to defend against relators' claim. Hipp v. Kansas City Pub. Serv. Co., 237 S.W.2d 928.
This is an original proceeding in mandamus to compel the respondent, as Judge of the Circuit Court of Stoddard County, to set aside an order of dismissal as to one of two parties defendant in a cause pending in said court, and to reinstate said cause and proceed to the trial and final disposition of said action. Relators are Tom Baker and Trailback Plantation, plaintiffs in said cause. The case was submitted to this court upon a motion for judgment on the pleadings. The facts, which are not in dispute and which appear from the pleadings, are as follows.
The suit below was originally filed against Cypress Land Farms Company, a corporation, Shell Chemical Corporation, and Cypress Supply Company, a corporation. The petition was in two counts, the first count alleging a cause of action for breach of an implied warranty in the sale to plaintiffs by defendants of a spray cart, and the second count being an action for negligence in connection with said sale.
On May 12, 1953, Cypress Land Farms Company filed its separate answer in said cause. Thereafter, and on October 19, 1953, the relators, as plaintiffs, dismissed said action as to all the defendants except the Cypress Land Farms Company, a corporation, and by leave of court made the Ferguson Machine and Tool Company, Inc., a corporation, a party defendant. At the same time, relators filed their first amended petition.
The first count of the amended petition was directed against the defendant Cypress Land Farms Company. In said first count it was alleged that during the year 1950 plaintiff Trailback Plantation owned approximately ninety acres of land in Stoddard County, Missouri, which plaintiff Tom Baker occupied as tenant; that during the year 1950 all of said land was planted in cotton by Tom Baker under an agreement with Trailback Plantation whereby said tenant had a one-fourth interest in said cotton and the owner a three-fourths interest therein; that on or about June 29, 1950, defendant Cypress Land Farms Company, with knowledge of the above mentioned facts and knowing that plaintiffs desired to purchase a spray cart and spray material to be used by them in spraying their cotton to kill insects thereon, sold and delivered to the plaintiffs a spray cart and six five-gallon cans of "Aldrin", a chemical to be used in said cart for the purpose of killing insects, and then and there impliedly warranted said spray cart and "Aldrin" to be in all respects fit and proper for such use; that after said purchase plaintiffs, relying on said warranty, used the spray cart and spray in spraying said cotton, and as a direct result thereof said cotton was damaged and destroyed because said spray cart was contaminated with a poisonous substance other than "Aldrin", which poisonous substance was commonly known as "2-4-D"; and that plaintiffs suffered damages as a result thereof in the sum of $15,000, for which sum they prayed judgment.
The second count of said petition was directed against both defendants. It alleged that during the year 1950 the defendant Ferguson Machine and Tool Company, Inc., made and assembled approximately forty-three spray carts for one Henry Cohn, Sr., and Henry Cohn, Jr., partners doing business as Carrollton Farm Supply Company; that in June, 1950, after said defendant had manufactured and assembled carts for said Carrollton Farm Supply Company, and while it had said carts in its possession it was furnished a can of poisonous chemicals known as "2-4-D" by said Henry Cohn, Sr., to be used in one of said spray carts for killing weeds at said defendant's place of business in Ferguson, St. Louis County, Missouri; that said poisonous substance was thereafter so used; that thereafter, on or about June 27, 1950, four of said spray carts, including the one in which said poisonous chemical had been used, were delivered to the defendant Cypress Land Farms Company; that the latter, although it knew that the defendant Ferguson Machine and Tool Company had used one of said spray carts to spray poisonous chemicals, sold and delivered same to plaintiffs as a new machine; that at said time Cypress [295] Land Farms Company and its officer. Henry Cohn, Sr., knew that plaintiffs were engaged in raising cotton on their land and desired to use said cart in spraying said cotton with a chemical known as "Aldrin" for the purpose of killing insects thereon; that plaintiffs did use said spray cart for said purpose and as a result plaintiffs' cotton was damaged and destroyed, all to plaintiffs' damage in the sum of $15,000.
It was further alleged that plaintiffs' damage was due to the negligence of defendants. The negligence charged against Ferguson Machine and Tool Company, Inc., was: "(a) in using the poisonous chemical known as `2-4-D' in said machine in spraying the weeds on the premises belonging to said defendant; (b) in failing to properly and sufficiently clean said machine and all parts thereof after it had used said poisonous chemical therein; (c) in failing to warn the plaintiffs that said poisonous chemical, that is, `2-4-D', had been used in said machine; (d) in failing to place any sign or warning on said machine so as to indicate and warn such persons who might use it that said poisonous chemical had been used therein."
The negligence charged against Cypress Land Farms Company was: "(a) in failing to properly and sufficiently clean said machine and all parts thereof after the Ferguson Machine and Tool Company, Inc., had used said poisonous chemical, that is, `2-4-D', therein; (b) in failing to warn the plaintiffs that the poisonous chemical `2-4-D' had been used in said machine; (c) in failing to place any sign or warning on said machine so as to indicate and warn persons who might use it that such poisonous chemical had been used therein."
The prayer of said second count of the petition was for damages in the sum of $15,000 against both defendants.
A summons in said cause was served on the defendant Ferguson Machine and Tool Company, Inc., by the Sheriff of St. Louis County delivering a copy thereof, together with a copy of the amended petition, to Irvin A. Waterstreet, its Vice-President, who at the time was in the company's usual business office in St. Louis County and in charge thereof. A copy of said amended petition was served on defendant Cypress Land Farms Company by delivering the same to its attorney of record.
Cypress Land Farms Company is a Missouri corporation with its principal office, place of business, and residence in the City of St. Louis.
Ferguson Machine and Tool Company, Inc., is a Missouri corporation with its principal office, place of business, and residence in St. Louis County.
Neither defendant maintains an office or agent in Stoddard County for the transaction of its usual or customary business.
After the service upon it as aforesaid. Ferguson Machine and Tool Company, Inc., filed in said cause its motion to dismiss for lack of jurisdiction over said defendant, said motion alleging the court lacked jurisdiction because:
"(a) Neither defendant herein is a resident of Stoddard County, Missouri, as required by Section 508.010 R.S. Missouri, 1949.
"(b) The summons and petition were illegally sent outside Stoddard County, Missouri, for service on the defendant.
"(c) Neither defendant was personally served in Stoddard County, Missouri. * *"
Thereafter, said motion was by the court sustained, the court's order reading as follows:
"Motion to dismiss first amended petition sustained in part. Cause abated as to defendant Ferguson Machine and Tool Company, Inc., because of improper venue and lack of jurisdiction over said defendant when joined with its co-defendant."
Relators then filed in this court their petition for a writ of mandamus, seeking to compel the respondent to set aside said order, and to reinstate the case as to the defendant Ferguson Machine and Tool [296] Company, Inc., and to proceed to trial as to both defendants.
Thereafter, upon motion, Cypress Land Farms Company was permitted to intervene in this cause for the purpose of filing briefs and being heard at the oral argument in this court.
Relators contend that Section 508.040 R.S. Mo. 1949, V.A.M.S., controls the venue of relators' suit against Ferguson Machine and Tool Company, Inc., and Cypress Land Farms Company; that under said statute the proper venue of said suit includes the county where the cause of action accrued; that since relators' cause of action against the defendants accrued in Stoddard County, the suit was properly brought in Stoddard County.
Relators take the further position that intervenor is precluded from asserting that Stoddard County is not the proper venue of relators' suit against it for the reason that intervenor entered its appearance in said cause by filing an answer to relators' original petition.
Respondent takes the position that Section 508.010 R.S.Mo. 1949, V.A.M.S., controls the venue of relators' suit; that under said statute the proper venue of said action is either St. Louis County, the residence of Ferguson Machine and Tool Company, Inc., or the City of St. Louis, where Cypress Land Farms Company resides, and for that reason the circuit court of Stoddard County is without jurisdiction.
Intervenor, Cypress Land Farms Company, takes the position that if relators' suit is abated as to Ferguson Machine and Tool Company, Inc., it should also be abated as to intervenor; and conversely, if said suit is not abated as to intervenor, that Ferguson Machine and Tool Company, Inc., should be reinstated as a party defendant, for the reason that both defendants stand in essentially the same position with respect to the matter of venue. Intervenor therefore urges that this court either (a) quash the alternative writ and order relators' suit be abated as to intervenor as well as to Ferguson Machine and Tool Company, Inc., or, in the alternative, (b) grant the relief prayed by relators.
[1, 2] The question presented in this case is whether or not two corporations can be sued jointly in a county where a cause of action accrues against both corporations where neither defendant resides in said county. A determination of this issue depends upon whether venue in such a case is fixed by Section 508.040 R.S. Mo. 1949, V.A.M.S., as relators contend, or is determined by the second subdivision of Section 508.010 R.S. Mo. 1949, V.A.M.S., as ruled by respondent.
Section 508.010 is the general venue statute, fixing venue in actions against individual defendants, the portion relevant to our inquiry here being as follows:
"Suits instituted by summons shall, except as otherwise provided by law, be brought:
* * * * * * * *
"(2) When there are several defendants, and they reside in different counties, the suit may be brought in any such county."
Section 508.040 applies in suits against corporations, and reads:
"Suits against corporations shall be commenced either in the county where the cause of action accrued * * * or in any county where such corporations shall have or usually keep an office or agent for the transaction of their usual and customary business."
It is readily apparent that the foregoing sections of the statute do not in express terms cover all possible situations likely to arise. Thus there is no express provision fixing venue in cases where one or more corporations are sued with one or more individuals. Nor is there any express provision to take care of a situation like the case at bar where two corporations are sued in the same action.
This court on several occasions has had before it the first proposition above mentioned, and has uniformly ruled [297] that in such a case the two sections should be construed in pari materia and, when so considered, venue in such cases should be determined according to subdivision (2) of Section 508.010 R.S. Mo. 1949, V.A.M.S. State ex rel. Columbia National Bank of Kansas City v Davis, 314 Mo. 373, 284 S.W. 464; State ex rel. C.H. Atkinson Paving Co. v. Aronson, 345 Mo. 937, 138 S.W.2d 1; State ex rel. Clay County Bank et al. v. Waltner, 346 Mo. 1138, 145 S.W.2d 152; State ex rel. Henning v. Williams, 345 Mo. 22, 131 S.W.2d 561; State ex rel. Whiteman v. James, Mo. Sup., 265 S.W.2d 298.
It is urged by respondent that the same rule should be applied where two corporations are made defendants, and the above cases are relied on as authorities in support of such contention. An examination of these decisions reveals that the court in each instance, in ruling that venue in the particular case was controlled by the second subdivision of Section 508.010 R.S. Mo. 1949, V.A.M.S., declared that the rule should extend to cases where corporations only were sued jointly, and limit the application of Section 508.040 R.S. Mo. 1949, V.A.M.S., to actions where a corporation was the sole defendant.
In none of the cases relied on by respondent was it necessary for the court to announce the rule in such broad terms. In each instance the question before the court related merely to venue in cases where corporations were joined as parties defendant with individuals. Under such circumstances the pronouncements therein favorable to respondent's position here should not be regarded as authoritative precedents.
There is no doctrine better settled than that the language of judicial decisions must be construed with reference to the facts and issues of the particular case, and that the authority of the decision as a precedent is limited to those points of law which are raised by the record, considered by the court, and necessary to a decision. State ex rel. Lashly v. Becker, 290 Mo. 560, 235 S.W. 1017; Ex parte DeCastro, 238 Mo. App. 1011, 190 S.W.2d 949; Pettus et al. v. City of St. Louis et al., 362 Mo. 603, 242 S.W.2d 723; Schupbach v. Fisler, 362 Mo. 39, 239 S.W.2d 502.
Section 508.010 fixes the venue in all suits instituted by summons "except as otherwise provided by law". By Section 508.040 the General Assembly has provided a different scheme for venue in "suits against corporations" by specifying that such actions shall be brought either in the county where the cause of action accrued, or in the county where the corporation has or usually keeps an office or agent for the transaction of its usual or customary business. It is a special statute designed to take corporations from under the operation of Section 508.010. By its terms, Section 508.040 applies to all corporations and is mandatory in its provisions. Being a special statute, it must prevail in all cases where it is possible to apply it, for it is a well established rule of statutory construction that specific statutory provisions prevail over broad general provisions, 50 Am. Jur., Statutes, page 86, sec. 67.
While it is true, as stated in State ex rel. Columbia National Bank of Kansas City v. Davis, supra, Section 508.040 does not in express terms undertake to fix venue in cases where there are several corporate defendants, it seems to us that it does so by necessary implication.
In a case where individuals and corporations are sued jointly it is necessary to construe the two sections together for neither expressly fixes the venue in such case, and it is only Section 508.010 that does so by implication. But in the case of two corporations being sued, a different situation exists. When we look to the statutes for the proper venue in such a case we find Section 508.040 designed to cover venue in suits against corporations, which statute can be construed to cover the situation. We believe that such construction should he put on said statute, and that the proper venue in the case at bar is in Stoddard County, where the cause of action, as alleged, accrued.
[298] We hold that respondent Judge should set aside his order of April 8, 1954, abating the action as to defendant Ferguson Machine and Tool Company, Inc., reinstate said action as to said defendant, and proceed in said action as to both defendants. For that purpose, our alternative writ of mandamus is hereby made peremptory. Leedy, Acting C.J., and Dalton, Hollingsworth, Hyde, and Ellison, JJ., concur.
ON MOTION FOR REHEARING
In the opinion filed herein we failed to dispose of respondent's contention that Stoddard County was not the proper venue for the reason that plaintiffs' petition failed to state a joint cause of action against the defendants. There is no merit to this contention.
Prior to the decision of this court in State ex rel. Campbell v. James, 263 S.W.2d 402, it was the law that, in suits brought against several persons residing in different counties, jurisdiction over the non-resident defendants was acquired by service of process upon them in the county of their residence only when a joint cause of action was pleaded. Those decisions determined jurisdiction only where venue was sought under the general venue statute (now Section 508.010 R.S. Mo. 1949).
In the case at bar, venue is not to be determined under Section 508.010 R.S. Mo. 1949, V.A.M.S., but under the provisions of Section 508.040 R.S. Mo. 1949, V.A.M.S. There is no reason for applying in this case the rule contended for by respondent. In State ex rel. Campbell v. James, supra, said rule was disapproved with respect to venue attaching under Section 508.010 R.S. Mo. 1949, V.A.M.S. In that case it was held that jurisdiction is acquired over non-resident defendants, even though no joint cause of action is stated, where the parties defendant are lawfully joined under the provisions of Section 507.040 R.S. Mo. 1949, V.A.M.S.
It is also urged by respondent that jurisdiction did not attach in this case for the reason that no cause of action was stated against Ferguson Machine and Tool Company, Inc. In support of this contention there is cited the case of Diehr v. Carey, 238 Mo. App. 889, 191 S.W.2d 296. That case held that it was a prerequisite to lawful joinder of a non-resident defendant that a cause of action be stated against the resident defendant. There again the court was dealing with a case where Section 508.010, supra, governed the matter of venue. The rule announced in said case is still the law in actions under said section. State ex rel. Campbell v. James, Mo Sup., 263 S.W.2d l.c. 406. However, it is not applicable to a case such as the one at bar where venue is determined by Section 508.040 R.S. Mo. 1949, V.A.M.S.
For the above reasons, we need not determine whether plaintiffs' petition stated a cause of action against the Ferguson Machine and Tool Company, Inc.