This suit was instituted by an application for a writ of mandamus originally filed in this court. The whole case is on paper. Relator filed an application for a writ of mandamus, respondent filed his return, and relator filed a demurrer. The facts *Page 845 alleged are that the relator brought suit on a policy of insurance in the circuit court of Jackson county, Missouri, and filed the petition with the circuit clerk at Independence. The defendant in that cause, Midwest Life and Casualty Association of Topeka, Kansas, entered a special appearance and filed a motion to quash the return upon the summons. While this motion was pending a stipulation, signed by the attorneys for plaintiff and defendant, was filed which, omitting caption and signatures, is as follows:
"The undersigned attorneys for plaintiff and defendant hereby stipulate that with the consent of the court this case may be removed and transferred to the circuit court of Jackson county, Missouri, at Kansas City."
Pursuant to this stipulation the cause was transferred and was assigned to division eight of the circuit court of Jackson county at Kansas City, and thereafter the motion to quash the sheriff's return was sustained. The plaintiff then sued out an alias summons which was served upon the commissioner of insurance of Missouri. The defendant then filed a motion to quash the return upon this summons. This motion was filed with the circuit court of Jackson county at Kansas City, and was sustained. The plaintiff then filed a motion to compel defendant to plead, answer or demur to plaintiff's petition on the ground that defendant had entered its appearance in the cause by stipulation, but had nevertheless refused to plead. The motion was overruled. It is alleged that the circuit judge has refused to take jurisdiction of the suit and has refused to compel the defendant to plead, answer, or demur to the petition.
The prayer of the petition for mandamus is that the Honorable DARIUS A. BROWN, judge of the circuit court of Jackson county, Missouri, at Kansas City, be commanded to set aside the order overruling the motion to require the defendant in said cause to plead, answer, or demur, and that respondent be commanded to require defendant to plead, answer, or demur, and that respondent proceed to hear and determine same according to law. It is not alleged that the court has refused to respond to any attempt of relator to invoke the jurisdiction of the court, except that it has refused to sustain the motion to require defendant to plead, answer, or demur.
It is suggested by the respondent that the stipulation only consented that the hearing of the motion to quash the return should be transferred to the circuit court sitting at Kansas City. We do not so construe the stipulation. If the parties had intended to enter into such a stipulation, they no doubt would have stipulated that the hearing of the motion might be at Kansas City rather than at Independence. *Page 847 But it was expressly stipulated that the case might be removed and transferred. We think this was a general appearance for the same reason that an application or stipulation for change of venue is a general appearance. Surely, no one would contend that if the circuit court of Jackson county, sitting at Kansas City, had overruled the motion, that the case should have been retransferred to Independence in order that the trial might be had upon the merits. Nor would any one contend that if the motion had been overruled and the defendant had sought by prohibition to prevent the trial of the case upon the merits, that it would have been proper to direct the writ to Judge HALL, sitting at Independence. It would not have been proper for the parties to split the action so that the motion to quash the return would be pending before one judge but the case would have been pending before another. The defendant construed the motion as we do, because it filed a second motion to quash a return and caused the same to be acted upon by a circuit judge sitting in Kansas City, instead of calling up the motion before the judge at Independence. This construction was concurred in by the court, because the motion was sustained without referring it to the judge at Independence.
Respondent also suggests that the stipulation did not have the effect of removing the cause; because there is only one circuit court in Jackson county, and that after the stipulation was filed and the order of removal made the case was still pending in the same circuit court. We do not think that this fact changes the nature of the appearance. By filing the stipulation the defendant became a moving party in the cause and invited the court to make an order which was not a denial of its own jurisdiction. By procuring such an order defendant succeeded in designating a place of trial different from that which would have resulted from the filing of the petition or from any action taken by the plaintiff ex parte. Defendant succeeded in transferring further proceedings to a place which was, no doubt, more to its liking, and caused an order to be made which divested the judge sitting at Independence of all further power to make any orders whatsoever in the cause. In this connection we call attention to the fact that the effect of quashing the return was not the same as an order dismissing the action. After the return was quashed the cause was still pending, and the plaintiff still had the right to attempt to get service upon the defendant. The defendant still had the right to enter its voluntary appearance. But if the plaintiff did succeed in bringing the defendant into court, the cause would not proceed before the judge sitting at Independence.
The alternative writ issued by this court at the instance of relator commands the respondent to set aside the order overruling the motion to require the defendant to plead, answer, or demur to the relator's petition and to require the defendant to plead, answer, or *Page 848 demur and to proceed to hear and to determine the same according to law. It is to this writ and not to the petition, that the return is made. We know of no decision that holds that a circuit court of Missouri can make and enforce an order requiring the defendant to plead, answer, or demur to a petition. The defendant has the absolute right to stand in default. If the alternative writ had required the trial judge to exercise its jurisdiction or to proceed with the case notwithstanding the default of the defendant and had alleged that the court had refused to do so after its duty to proceed had been properly invoked, another question would be before this court. However, although we think that the return states no reason why the respondent should not exercise its jurisdiction, yet the return to the allegations in the alternative writ alleges sufficient grounds why the peremptory writ should not issue. The demurrer should therefore be overruled, the peremptory writ denied, and the alternative writ quashed. The commissioner so recommends. Boyer, C., concurs.