Batchelor v. Bess

22 Mo. 402 | Mo. | 1856

Leonard, Judge,

delivered the opinion of the court.

The claim of the plaintiff and the amount adjudged both exceeded a justice’s jurisdiction; for, although the amount of damages claimed by-the plaintiff is nowhere expressly shown, the amount for which he accepted a judgment must be here imputed to him as the amount he claimed. If he had remitted in the justice’s court the excess of damage there found, that would have been sufficient; and such, it is believed, has been the opinion and practice upon this subject. But such a remittitur in the Circuit Court, after the cause has been transferred there, by appeal, can not have the same effect. When the Circuit Court becomes possessed of a cause in this manner, the lawful jurisdiction depends upon the jurisdiction of the first court. If that tribunal had no lawful authority over the case, the Circuit Court can not acquire any by the appeal. This must be so on principle, and if we were to adjudge otherwise, the practical effect would be that, upon an appeal, on account of the defect of jurisdiction, the costs would be thrown upon the appealing party, by the mere act of the adverse party, upon his doing that in the Circuit Court that he might have done in the justice’s court, and which, if done there, would have superseded the necessity of appealing. This defect of jurisdiction is not one of those imperfections in the proceedings of a justice required to be disregarded by the Circuit Court upon an appeal, (R. C. 1845, tit. “Justices’ Courts,” art. 8, sec. 13) ; and, although the remittitur in the Circuit Court, and the judgment there, for the reduced amount, may, in fact, be for the benefit instead of the injury of the party, he has yet a right to insist upon the exercise of the jurisdiction over him, where none exists, as an error to his prejudice, which this court can not disregard.

As to the point that the objection is not properly saved, we remark that the amount of the recovery in the justice’s court appears, of course, upon the record, without any bill of exceptions ; and if, in order to authorize us to correct an error of this character — the exercise of jurisdiction where none exists— it must appear that the attention of the court was expressly called to it, and the matter passed upon, that is sufficiently done here by the motion and reasons for a review preserved in the bill of exceptions, which, although not applicable to a proceeding of this character, is sufficient for the purpose here indicated. The result is, the judgment of the Circuit Court must be reversed, and the suit dismissed, leaving the plaintiff at liberty to bring a fresh suit in either jurisdiction, according to the amount he may seek to recover;

and, Judge Ryland concurring,

it is ordered accordingly.