State ex rel. Clem Trans., Inc. v. Gaertner

688 S.W.2d 367, 1985 Mo. LEXIS 327

• Court: Supreme Court of Missouri
• Decided: April 2, 1985
• Docket: No. 66319
• Status: Published

Opinions

BILLINGS, Judge.

This is a proceeding in prohibition. The trial court overruled relators’ separate motions to dismiss a damage suit pending in the Circuit Court of the City of St. Louis. Relators request that this Court order the lower court to dismiss the suit because of lack of jurisdiction and venue. We quash our preliminary order.

Plaintiff in the pending suit is a resident of the City of St. Louis. She alleges she was injured when an automobile in which she was riding and being driven by a named individual defendant, also a resident of the City of St. Louis, was struck by a tractor-trailer in Illinois; that the rig was owned by relator Clems-Trans, Inc., and being driven by its employee, relator Lucia. Relators are named as defendants in the suit. The petition is silent as to residency of either relator.

The record in this proceeding is completely devoid of the manner of service of process on relators and the sufficiency of service on them has not been called into question by a motion to quash service. Allegations in plaintiffs petition and grounds advanced by relators in their motions indicate that personal jurisdiction over the rela-tors may very well turn on undetermined factual matters. Where personal jurisdiction turns upon some fact to be determined by the trial court, its ruling that it has jurisdiction, if wrong, is simply error for which prohibition is not the proper remedy. State ex rel. Fabrico v. Johnson, 239 S.W. 844 (Mo. banc 1922). Excess of jurisdiction must be clearly evidenced. State ex rel. Tarrasch v. Crow, 622 S.W.2d 928 (Mo. banc 1981). Further, the extraordinary writ of prohibition should not be used to allow an interlocutory appeal of alleged trial court error. State ex rel. Morasch v. Kimberlin, 654 S.W.2d 889 (Mo. banc 1983).

The preliminary order in prohibition is quashed.

HIGGINS, GUNN and DONNELLY, JJ., concur. BLACKMAR, J., dissents in separate opinion filed. RENDLEN, C.J., and WELLIVER, J., dissent and concur in separate dissenting opinion of BLACKMAR, J.