Salisbury v. Salisbury

202 S.W. 529, 274 Mo. 180, 1918 Mo. LEXIS 13

• Court: Supreme Court of Missouri
• Decided: April 9, 1918
• Status: Published

Opinion

ROY, C.

This is a suit to enjoin the sale of land under execution. The hill was dismissed and plaintiff has appealed.

Plaintiff and Francis O. Salisbury, one of the defendants, are husband and wife, and are residents of St. Louis. The other two defendants are residents of Dent County, of which said Gribbs is sheriff. Plaintiff furnished her hush,and with money to buy for her some Dent County land. Pie did so, but fraudulently took the title in his own name. He got in debt to defendant Duggan, and she recovered judgment for it against him in the circuit court of the city of St. Louis in April, 1914. Execution was issued on that judgment, directed to defendant Gribbs as sheriff of Dent County, and was levied on the land. Plaintiff then sued her husband in Dent County to divest him of title to the land and tó vest it in herself. The husband entered his voluntary appearance therein, but filed no answer. The decree was in accordance with the petition.

Thereupon, plaintiff brought this suit in the circuit court of St. Louis to enjoin the sale of the land under that execution. The petition charges that defendants Duggan and Francis O. Salisbury are acting together in the attempt to sell said land under said execution.

The answer of defendant Duggan contained the following:

“First: Questions the jurisdiction of the court over' the person of Mary E. Duggan in this cause for the reason that she,, the said Mary E. Duggan, is a resident of Dent County, Missouri, and was ’a. resident of said county at the date of the filing of plaintiff’s bill, and that the plaintiff is a resident of the city of St. Louis, Missouri, and that G. W. Gibbs, the sheriff of Dent County, .Missouri, is a resident of Dent County, and that the plaintiff fraudulently and unlawfully joined her husband, Francis 0. Salisbury, as a party defendant in this action for the sole and only purpose of seeking to acquire jurisdiction over the person of this defendant, Mary E. Duggan, and -her co-defendant, G. W. Gibbs, sheriff of Dent County; and that there is no joint interest or. liability, existing between the said defendants, Francis 0. Salisbury and Mary E. Duggan, and the said G. W. Gibbs, sheriff of Dent County, and this court is without jurisdiction to hear and determine this case as an independent action of injunction.

“Further answering, the defendant Mary E. Dug-gan, avers that this court has no. jurisdiction over the subject-matter of this action in this, to wit: That this court had no right to issue an- injunction restraining the proceeding of Division No. 5 of the circuit court of St. .Louis City, and to restrain the sale of the lands described in plaintiff’s petition under an execution issued by Division No. 5 of this court, and that this court had no control over the proceedings and execution issued by Division No. 5.”

The answer of defendant Francis 0. Salisbury was as follows:

“Now at this day comes Francis 0. Salisbury, one of the defendants named in the above entitled cause, and for his separate answer to the plaintiff’s petition heretofore filed in said cause says that he admits the truth of every allegation in said petition contained, except that he denies that he had aided the other defendants in depriving plaintiff of her land.”

On the trial the court found that plaintiff furnished the money to buy the land, and that the title was to have been put in her name; but that there was no evidence to indicate any conspiracy between Duggan and plaintiff’s husband to sell the land under execution. The Court then said:

“But there is absolutely, no evidence here as to any collusion between Francis 0. Salisbury and Mary Duggan. And that being the case, I do not see how this court has. any authority to hear and determine the rights of the plaintiff in this action in so far as attempting to restrain residents of a different county from interfering in any way with her right to a clear title and restrain from taking any action that would result in a cloud being put on her title. I am of the opinion that this matter has to be tried in Dlent County.”

I.' We agree with the learned trial judge that the circuit court of St. Louis had no jurisdiction herein against the defendants Duggan and Gibbs, residents of Dent County. Francis 0. Salisbury neither had nor claimed any interest in the property, and was. not acting in concert with the other defendants. He was evidently made a defendant for the sole purpose of givipg the circuit court of St. Louis jurisdiction. That can not be lawfully done. [State ex rel. v. Bradley, 193 Mo. 33; Haseltine v. Messmore, 184 Mo. 298.]

II. A plea to the jurisdiction is properly joined with a plea in bar. [State ex inf. v. Vallins, 140 Mo. l. c. 536, and cases there cited.]

The action of the trial court in sustaining the plea to the jurisdiction and dismissing plaintiff’s hill is sustained.

White, G., concurs.

PER CURIAM: — The foregoing opinion of Rot, C., is adopted as the opinion of the court.

All of the judges concur.