192 Mo. 658 | Mo. | 1906
Carpenter owned lots 19 and 20 in block 2 in Jackson’s addition to the city of St. Joseph. During his ownership, on August 14, 1899, the city provided by special ordinance for the laying of a four-foot brick sidewalk on the west side of Thirteenth street in front of said lots. The contract was let to Helsley Brothers who performed. On November 27, 1899, two special taxbills were issued by the city engineer of said city, whereby it was certified that the work of constructing said sidewalks was completed in accordance with ordinances, naming them; that the cost had been computed at $11.43 for each lot. No complaint is made as to the validity of the ordinance or the taxbills. The statutes (R. S. 1899, sec. 5664), provide that the life of the lien of such bills shall be two years after the maturity thereof. These bills matured in thirty days from date and the bills were duly assigned to respondent Fred Roth. The Statute of Limitations being about to run, and Carpenter having neglected and refused payment of the bills, Roth, on the 30th day of October, 1901, commenced suit upon the bills before Henry W. Burke, a justice of the peace within and for Washington township in Buchanan county, Missouri. Summons issued and was duly served, the cáuse proceeding to judgment before the justice on the 11th day of November, 1901. The validity of this judgment is assailed only on the ground that the judgment itself does not recite the alleged jurisdictional fact, to-wit, that the suit was brought before a “justice of the peace in said city” — suits on special taxbills up to $300 being permitted before justices of
The return on the execution shows a separate levy on each of the two lots, a due advertisement and a sale on the 10th day of January, 1902, that Eva R. Roth purchased lot 19 for the sum of $7.50 and purchased lot 20 for the sum of $5.
It seems that a deed was made and acknowledged by the sheriff to Eva Eoth conveying the interest of Carpenter and Mrs. Carpenter in both the lots, showing a sale of the lots together and not separately for the proportionate share of the tax due on each. A suit was brought involving the validity of this deed and it was declared void. Thereupon, the sheriff executed an amended deed in which it was shown that the lots were levied on separately for the tax adjudged against each, were put up separately and bid off separately for the respective sums aforesaid, and the deed otherwise complied with the law.
In January, 1902, plaintiff commenced this suit in equity, the object and general nature of which was to vacate the judgment of the justice and to annul the amended deed as a cloud upon plaintiff’s title. The cause was tried on an amended bill, setting forth, inter alia, that plaintiff was the owner of the lots in fee; that a suit was instituted before Burke, a justice of the peace within and for Buchanan county on the taxbills
To this bill, defendants interposed an answer of admission, and denials, moreover alleging that after the rendition of the justice judgment, defendant Fred Roth caused a transcript to be filed, and thereafter caused the clerk of the circuit court to issue separate executions upon separate counts of said judgment against said lots, directing the sheriff to sell the property described in each execution to satisfy the same. That in pursuance of separate commands in each of
The chancellor found for defendants and entered a judgment dismissing the bill, and plaintiff, perfecting an appeal, brings the case here for review.
At the trial plaintiff was sworn as a witness and testified he owned the lots in question and is now in possession of them. On cross-examination this question was asked: “Q. You had knowledge all the time about the taxbills being issued?” An objection being here interpolated, the court said: “As I understand the statement of Mr. Sherwood (plaintiff’s counsel) and the pleadings taken in connection therewith, he admits that this suit (the justice suit) was brought and that service was had on him, and he raises only one question, that is, whether or not the record affirmatively shows that the justice of the peace had jurisdiction, or had his office in Washington township or in the city of St. Joseph. There is no other issue in this case.”
In this formulation of the issues, plaintiff acquiesced by his silence.
The sheriff’s deed sought to be cancelled was then introduced, and it, in addition to the narrations heretofore alluded to, set forth the transcript execution in full, and in this transcript execution, so copied into the
Plaintiff next introduced a transcript of the justice’s judgment filed June 23, 1903. This transcript bore the caption, “State of Missouri, County of Buchanan, ss.” It shows a judgment by default, and nothing appears therein to identify the justice as a justice in St. Joseph, or in Washington township. It is signed thus: “Henry W. Burke, Justice of the Peace,” and certifies it was made for the purpose of correcting an error in the original transcript. What the error was, thus attempted to be corrected, is not pointed out. To the offer of this evidence defendants objected for the reason that the execution was issued under the original transcript. Thereupon the court called for the original transcript and plaintiff’s counsel produced it.' Thereat the court ordered them both introduced. In this emergency, plaintiff’s counsel said: “I do not want to be introducing a transcript that recites that Judge Burke is a justice of Washington township.” Plaintiff objected to the original transcript as incompetent and his objection was overruled.
The original transcript being introduced, its caption reads: “State of Missouri, county of Buchanan, ss. Before Henry W. Burke, a justice of the peace for Washington township,” and is otherwise the same as the amended transcript, so far as we can see.
Here plaintiff rested.
Defendants to sustain their defense introduced Justice Burke and by him showed he was a justice of the peace of Washington township. This evidence was objected to, the objection overruled and plaintiff excepted. Thereupon it was proved by'him that he had been a justice of the peace in said township for over seventeen years; had lived in Washington township
On his cross-examination it was shown that Washington township comprises more than the city of St. Joseph.
Defendants next introduced the county clerk who produced the records of the county court and therefrom it appeared that Washington township is in Buchanan county, Missouri, and is one of the municipal townships into which that county was divided.
At this stage of the trial the following admission was made: “Plaintiff admits that the proposed evidence will show that the city of St. Joseph lies wholly within Washington township but that a large part of said township lies outside of the city.”
Defendants next introduced the original petition in the justice court. Also the summons and the return thereon. To this evidence plaintiff interposed the objection “that it was incompetent, irrelevant and immaterial.” The original petition shows it was entitled thus: “Before Henry W. Burke, a justice of the peace within and for Washington township, in Buchanan county, Missouri.” It described the real estate as in the city of St. Joseph, Missouri, and by apt narrations sets forth the cause of action on the taxbills. The caption of the summons is as follows: ‘ ‘ The State of Missouri to the constable of Washington township, Greeting, ’ ’ and the summons narrates that said constable is commanded to summon James W. Carpenter and Mrs. James W. Carpenter, his wife, “to appear before the undersigned, one of the justices of the peace of Washington township in Buchanan county . . . at
Thereupon, the defendants offered in evidence the original transcript execution on which the sheriff’s deed was based. It will not be necessary to show its terms further than to state that it set forth a judgment rendered “Before one Henry W. Burke, a justice of the peace within the city of St. Joseph, in and for Washington township, in the county of Buchanan and State of Missouri.” To the introduction of this execution, the plaintiff interposed the objection that the quoted narration last above did not appear in the transcript itself and because it was interlined in the execution in a handwriting not that of the clerk. The objection was overruled and appellant excepted. Following this, the return on the execution was introduced showing as heretofore stated.
Defendants having rested, plaintiff’s counsel recalled Mr. Carpenter for further examination and ask: ed him this question: “Q. Mr. Carpenter, what is the property worth?” The question, being objected to, was ruled out and plaintiff excepted.
In the motion for a new trial no error is claimed in the rejection of competent proof,- nor does the petition assign as a reason for setting aside the deed and sale in question that the sale was improvidently made for an inadequate consideration. Appellant’s learned counsel devotes portions of his elaborate brief to the question of inadequacy of consideration. But, because of his failure to plead such fact, coupled with his failure to direct the chancellor’s attention to error in ruling out competent evidence, if any such was excluded, in his motion for a new trial, no consideration should be paid to that question here. The same disposition must be made of the allegations in the petition to the effect that the narrations in the sheriff’s amended deed were false, wherein it is said that the lots were sold separate
This leaves the ease to stand or fall here on one simple proposition, namely, did the justice of the peace have jurisdiction? And that question is settled against appellant in Harris v. Hunt, 97 Mo. 571. Conceding that the jurisdiction should appear from the proceedings, yet the proceedings are not alone the judgment. [Sutton v. Cole, 155 Mo. l. c. 213; City of Tarkio v. Clark, 186 Mo. l. c. 297.] The statute provides that a justice shall keep a docket and specifically commands what he shall enter therein. [R. S. 1899, sec. 3844.] Nowhere does the statute command he should set forth in his judgment that he is a justice in a certain city or any other fact showing where his office is. Since an early day it has been the law in this. State that a justice’s docket, proper, is only evidence of facts required by law to be kept therein. [Brown v. Pearson, 8 Mo. 159; Palmer v. Hunter, 8 Mo. 512; Heman v. Larkin, 99 Mo. App. l. c. 298.] If then, Justice Burke had made a narration in his judgment to the effect that he was a justice of the peace “in the city of St. Joseph,” that narration would seem not to have proved itself.
The statute provides (sec. 5664) that “ ... when the amount due on any taxbill does not exceed three hundred dollars, suit may be brought thereon before any justice of the peace in said city, as in other civil eases, and such justice of the peace, ’ ’ etc. A similar statute was before this court in the Harris case, supra, and it was there held that the legal meaning of a justice in a city was a justice in the municipal township in which the city was situated having jurisdiction in civil suits. Cities do not elect justices — strictly speaking there is no such a thing as a justice in a city except possibly in St. Louis. Justices are municipal township officers. [R. S. 1899, sec. 3805.] The pro
Therefore, the judgment is affirmed.