This mistake has been made before, in different and far less dramatic circumstances. SeeSperry Corp. v. Corcoran , 657 S.W.2d 619, 623 (Mo. banc 1983) (Blackmar, J., dissenting) ("What the [principal] opinion overlooks, however, is that Rule 52.05(a) is virtually identical to ยง 507.040.1, RSMo 1978.
BLACKMAR, Judge. By this opinion we overrule Sperry Corporation v. Corcoran, 657 S.W.2d 619 (Mo. banc 1983). The relator, Adelaide H.P. Bitting, a resident of St. Louis County, filed suit in the Circuit Court of the City of St. Louis against Ida Helene Jones, Barnes Hospital, Washington University Medical Center, and Washington University.
A registered agent is not an agent within the meaning of the statute. Sperry Corporation v. Corcoran, 657 S.W.2d 619 (Mo. banc 1983); Wadlow v. Donald Lindner Homes, Inc., 654 S.W.2d 644 (Mo.App. 1983); State ex rel. Whaley v. Gaertner, 605 S.W.2d 506 (Mo.App. 1980). Under section 508.040, RSMo 1978, then, venue is not in St. Louis City.
The limitations on the Jinkerson holding as applied only to venue also pertain to a line of cases relied on by defendants. See State ex rel. Turnbough v. Gaertner, 589 S.W.2d 290 (Mo. banc 1979), Sperry Corp. v. Corcoran, 657 S.W.2d 619 (Mo. banc 1983). In these cases, joinder was an issue subsidiary to venue.
Residents of Johnson County, Kansas may suffer no great difficulty or inconvenience if they are called upon to attend a trial in Kansas City, Missouri. By contrast, it may be very inconvenient to hold a trial in the City of St. Louis when all other incidents of the case relate to Springfield and adjoining counties. See Sperry Corporation v. Corcoran, 657 S.W.2d 619, 621 (Mo. banc 1983), Blackmar, J., dissenting, in which there was an attempt to maintain such a case in the City of St. Louis when venue was supported only by the presence of the registered office of a corporate defendant there. In that case the issue of forum non conveniens was not presented because the majority found that the cause of action stated against the corporate defendant was not the same as that stated against the other defendants, and so the venue in St. Louis was improper.
Prohibition is recognized as a remedy where venue is improper and the trial court is without jurisdiction. Sperry Corp. v. Corcoran, 657 S.W.2d 619, 620 (Mo. banc 1983). In the underlying action the plaintiff, Michael Rehm, filed suit against Edward A. Riley, Donald R. Rhodes, Edwin T. Cato, Rickey A. Stubbs and Western Surety Company for the alleged mismanagement of his father's estate, the Estate of George L. Rehm. Riley and Rhodes served as co-personal representatives for the Estate.
Having found venue to be improper and the trial court to be without jurisdiction, prohibition will lie. Sperry Corp. v. Corcoran, 657 S.W.2d 619 (Mo. banc 1983); State ex rel. Allen v. Barker, 581 S.W.2d 818 (Mo. banc 1979). The preliminary order in prohibition of November 7, 1989, is made absolute.
Hughes v. Spence, 409 S.W.2d 701, 706 (Mo. 1966). At one time it was held "the joinder of two or more separate causes of action in a single petition does not create venue as to both causes...." Sperry Corp. v. Corcoran, 657 S.W.2d 619, 621 (Mo. banc 1983). Also see State ex rel. Turnbough v. Gaertner, 589 S.W.2d 290 (Mo. banc 1979).
If plaintiff had one cause of action against defendants Spitz and defendant Graven, then the residence of defendants Spitz made venue proper. See Sperry Corp. v. Corcoran, 657 S.W.2d 619, 621 (Mo. banc 1983). If plaintiff had only separate causes of action against the defendants Spitz and defendant Graven, then venue against defendant Graven is improper because the joinder of two or more separate causes of action in a single petition does not create venue as to both causes. Id. See also State ex rel. Turnbough v. Gaertner, 589 S.W.2d 290 (Mo. banc 1979).