State ex rel. Dutcher v. Shelton

DISSENTING OPINION.

GRAVES, J.

I desire to dissent from the principal opinion in this case. I differ from my learned brother as to the construction to be given to the petition filed by Campbell and. Ellison, as plaintiffs, v. P. M. Harrington and Marie Dutcher, as defendants, in the circuit court of Adair county. I think that petition states a joint cause of action against Harrington and Marie Dutcher. If it does then the suit was properly instituted in Adair county and the service upon Marie Dutcher, in the city of St. Louis, was a valid service, and the judgment entered against her by default a valid judgment, and further proceedings should not be stopped by our writ of. prohibition. If this petition upon its face states a good joint cause of action against the two defendants, all the matter of this contract entered into when the money was paid on the judgment and its contents and meaning has no place in the case. Nor can the petition be construed by the terms of this contract. Such contract might have been, valuable in the defense of the action had Marie Dutcher chosen to appear and defend it, but its terms are not material to the case at bar. To my mind the *701only questions we have to determine are (1) does the circuit court petition state a case at all, and (2) if so, does it state a joint liability upon the part of F. M. Harrington and Marie Dutcher? These questions must be answered from the petition itself and not from extrinsic matters. The full petition is set out in the principal opinion, but I requote the material portion thereof so as to italicize the words which I think show a joint action. That portion of the petition thus italicized reads:

"Plaintiffs further state that after the decision adverse, to her in said Division No. 1, of said Supreme Court these defendants authorised plaintiffs to employ other and additional attorneys to represent said Marie Dutcher in said Supreme Court and authorised and directed and requested that plaintiffs employ and offer to pay them the sum of two thousand dollars conditioned upon said judgment of said circuit court being affirmed and said judgment being collected; that plaintiffs did, at the instance and request of said defendants as aforesaid, and after said adverse decision in said Division No. 1, employ other counsel and obligate themselves to pay the sum of two thousand dollars conditional as aforesaid; that plaintiffs and said additional counsel in said cause incurred.an expense in attending the hearing in said Supreme Court and in printing briefs for said court in the sum of about four hundred dollars, no part of which has ever been paid by said Marie Dutcher; that' said additional counsel so employed as aforesaid rendered valuable assistance on behalf of said Marie'Dutcher in said cause in said Supreme Court, and said services were of the reasonable value of two thousand dollars; that the same are now due and unpaid.” -

The petition thus charges a joint request and a compliance with a joint request. A joint request to do a thing and a compliance with such request clearly implies a joint obligation. In this light the petition *702states not only a cause of action bnt a joint cause of action as against defendants. If such be the fact the circuit court of Adair county acquired jurisdiction-over both defendants when Harrington, a resident of Adair county, was served with process in that county, and Marie Dutcher duly served with process in the city of St. Louis. The jurisdiction once complete could not be ousted by dismissing the case as to Harrington. Nor is it material what prompted Harrington to join Marie Dutcher in the request for the employment of additional counsel. That is immaterial if he actually requested it along with her. We could speculate and to our own minds give a sufficient reason, but such is immaterial here. Nor is it material here whether or not there'was in fact a joint request, so the petition alleges such. Matters suggested in my brother’s opiniou might be well enough in a defense to the petition in the circuit court, but are wholly immaterial upon the question of jurisdiction or no jurisdiction of the circuit court, the sole question here for determination. In my judgment the writ should be denied.

Bond, J., concurs in these views.