Messrs. P. Taylor, Bryan and Douglas H. Jones, both of St. Louis, Mo., for appellant.
This action was originally brought in the circuit court, city of St. Louis, Mo., and was removed to the District Court of the United States upon the ground of diversity of citizenship. The action was upon a policy of automobile insurance issued by the defendant, and recovery depended upon judgment having been obtained and execution thereon having been returned unsatisfied in an action against the assured. It was shown that action had been brought in the state court against the assured, the Southwest Motor Sales Company, a Missouri corporation, and also against one Harry Shields, its executive officer. Process had been served upon Shields personally, and jurisdiction of the Southwest Motor Sales Company had been sought by constructive service under the Missouri law. Judgment by default had been entered against both defendants, and execution had been returned unsatisfied.
In the present action the Circuit Court of Appeals, affirming judgment for the defendant, held that the insurance policy which the defendant had issued did not cover Shields and that the service in the action against the Southwest Motor Sales Company was invalid under the decisions of the state court. Priest v. Capitain, 236 Mo. 446, 457, 139 S. W. 204; Moss v. Fitch, 212 Mo. 484, 497, 111 S. W. 475, 126 Am. St. Rep. 568. As the decision of the Circuit Court of Appeals merely applied the law of the state, no question is presented which gives this court jurisdiction of the appeal. Public Service Commission of Indiana et al. v. Batesville Telephone Co., 284 U.S. 6 , 52 S. Ct. 1, decided this day.