Bankers' Life Ass'n v. Shelton

1. Jurisdiction: CORPORATION: PLACE OP BRINGING SUIT. A domestic corporation may be sued at two places only, viz., where the ■ cause of action accrued or where it usually keeps an officer or agent. 2. -: LIPE INSURANCE: PLACE OP BRINGING SUIT. A domestic life insurance corporation having its office in Jackson county issued its policy to M., a resident of Macon county, who, going to S't. Louis for medical treatment, died in that city. Held, the action accrued in St. Louis and. suit should be brought there or in Jackson county. 3. -: APPEARANCE: ANSWER. Where defendant appears in the circuit court and files its answer objecting to the jurisdiction with a plea to the merits, taires depositions and obtains a continuance on the merits, it waives the question of jurisdiction. 4. -—: PROHIBITION: ERROR: APPEAL. Where the lack of jurisdiction does not appear upon the face of the proceedings but depends upon'matters aliunde, it then becomes a question for the circuit judge, and his findings can only be reviewed on appeal; and while the right to appeal will not bar the writ of prohibition, it ought to do so unless there is something qut of the ordinary, since the writ should not be used pimply to correct errors.

Original Proceeding in Prohibition. (1) ‘There-is a marked distinction as to the venue of actions against foreign and against domestic, insurance companies. E. S. 1899, sec. 562; E. S. 1889, sec. 5912; E. S. 1899, sec. 997. (2) Causes of action upon life insurance policies are transitory, follow the persons of the insured and accrue at the time and place of their respective deaths. 6 Thomp. on Corps., sec. 7430; Kennedy v. Burrier, 36 Mo. 128; Eire Dep. v. Beecher, 99 N. Y. 429; Kodgers v. Endowment Ass’n, 17 S. C. 406; citing Story’s Con. of Law, sec. 280; Bank v. Eailroad, 10 How. Pr. (3) If the cause of action of Sophia E. Morgan accrued outside Macon county, then defendant, as judge of the circuit court of that county, does not have jurisdiction over that class of cases or over the subject-matter of that controversy. E. S. 1899, sec. 602; Eoberts v. Ins. Co., 26 Mo. App. 92; Coombs Com. Co. v. Block, 130 Mo. 668 1. c. 673; Little v. Harrington, 71 Mo. 390; Smith v. Simpson, 80 Mo. 634, 639. (4) A final judgment in prohibition will not be denied to plaintiff because plaintiff has the cumulative remedy of an appeal. The writ of prohibition is a discretionary writ. 16 Ency. Plead, and Prac., p. 1109. (5) Prohibition may be used to keep a court within the limits of its lawful authority, in a given case no less than to prevent cognizance of cases not committed by law to its jurisdiction. State ex rel. v. Slover, 126 Mo. 652; State ex rel. v. Scarritt, 128 Mo. 331; Kailway v. Wear, 135 Mo. 230, 256. (1) The writ of prohibition ought to be denied upon plaintiff’s own showing.- The action pending before the respondent and sought to be prohibited is not a local but a personal and transitory action. Beyond question the circuit court has jurisdiction o.f the subject-matter, that is to say, of this character of cases—suits to recover on policies of insurance. The court having jurisdiction of. the subject-matter, it only remained for it to decide whether it had jurisdiction of the person of the defendant. The defendant was in court, at least, for the purpose of trying the question of jurisdiction. The court had jurisdiction both of the subject-matter and of the parties to decide the question of its own jurisdiction. It was not only proper but necessary for the court to decide such question, and its decision was a judicial determination of the matter in controversy. Such decision, however erroneous, is res adjudicata, and is binding and obligatory until reversed on appeal or writ of error. The general rule is that the writ of prohibition will not issue where a party has any other adequate remedy. State ex rel. v. Withrow, 141 Mo. 69; State ex rel. v. Withrow, 108 Mo. 1, 7; Wilson v. Berkstresser, 45 Mo. 283; State ex rel. v. St. Louis Court of Appeals, 99 Mo. 216; State ex rel. v. Burckhartt, 87 Mo. 533; State ex rel. v. Smith, 104 Mo. 419; State ex rel. v. Scarritt, 128 Mo. 331; Mastín v. Sloan, 98 Mo. 252; State ex rel. v. Klein, 116 Mo. 259; State ex rel. v. Anthony, 65 Mo. App. 543, 554; State ex rel. v. Bowerman, 40 Mo. App. 576; State ox rel. v. Seay, 23 Mo. App. 623; State ex rel. v. Laughlin, 7 Mo. App. 529; Barnes v. Gottsehalk, 3 Mo. App. 222. (2) The action accrued in the county of Macon where Morgan and his wife were residing at the time of his death, and where Mrs. Morgan, the beneficiary and payee of the policy, was at the time of her husband’s death. The fact that the husband died away from home in another county, while temporarily absent on business or pleasure, is of no importance or significance. The right of action was in the wife and accrued to her immediately on the death of the husband, or as soon thereafter as proof of death could be made under the rules of the company. Rippstein v. Ins. Co., 5Y Mo. 86, does not antagonize this view. Little v. Harrington, Yl Mo. 390. The administration law requires that letters of administration be granted in the county in which the mansion house or place of abode of the deceased is situated. R. S. 1899, sec. 4. (3) Another question arising in the case, and necessarily decided or to be decided, by the court is, whether the defendant company made such appearance to the action, as to give the circuit court jurisdiction of the person of the defendant. (4) It is submitted by the respondent that the foregoing facts constituted such an appearance by the defendant company to the said action as gave the circuit court jurisdiction over the person of the defendant, notwithstanding its plea to the jurisdiction, which had been decided against the defendant by the court. Baisley v. Baisley, 113 Mo. 644; citing Bohn v. Devlin, 28 Mo. 319; Orear v. Olough, 52 Mo. 55; Peters v. Railroad, 59 Mo. 406. The case of Baisley v. Baisley, supra, is cited and approved in Ivy v. Yancey, 129 Mo. 501, 506. To the same effect is Kronski v. Railway, YY Mo. 362, 368. (5) The writ of prohibition is one of the extraordinary remedies, and will only be used on extraordinary occasions, where jurisdiction of a court depends upon the findings as to contested facts. State ex rel. v. Seay, 23 Mo. App. 623, 630.