Corrigan v. Morris

43 Mo. App. 456 | Mo. Ct. App. | 1891

Lead Opinion

Ellison, J.

This case arises on a motion to quash an execution issued on a judgment rendered on a special tax bill by a justice of. the peace in Kaw township, Jackson county, Missouri. A transcript of the judgment was filed in the office of the clerk of the circuit court for Jackson county and said clerk issued the execution in question. The motion to quash was made before the circuit court and overruled. Defendants appeal.

The principal point in the motion is based on the ground that the proceedings before the justice of the peace failed to show that such justice was a justice of the peace in Kansas City. But the circuit court, pending a decision on the motion, made a rule on the justice to send up an amended transcript, which was done ; the certificate to which is as follows :

“ State ok Missouri, \

“ County of Jackson, iss.

“ City of Kansas. )

“I, A. W. Allen, a justice of the peace, within and for the county and state aforesaid, whose office is within the corporate limits of the City of Kansas, at the time all proceedings had in this cause, do hereby certify that the foregoing transcript is full, true and complete of all proceedings had before me in said cause, as taken and copied from my docket after it was amended, pursuant to the rule made upon me by the honorable judge of the circuit court of .Jackson county, Missouri, sitting at Kansas City. Given under my hand this twenty-seventh day of June, A. D. 1885.

“ A. W. Allen,

“ Justice of the Peace.”

The amendment consisted in stating that he was a justice of the peace in Kansas City, Missouri, and also including such statement in this certificate. The section of the charter of Kansas City which confers jurisdiction on justices of the peace on special tax bills is as follows :

“ When the amount due on any tax bill does not exceed $300, suit may be brought thereon before the recorder of the city, or any justice of the peace in said city, as in other civil cases, and such recorder or justice of the peace may render a special judgment, as aforesaid, but, to enforce the same, a transcript of such judgment shall be filed in the office of the clerk of the circuit court of Jackson county, in said city, * * * whereupon an execution may be issued,” etc.

It will be noticed that this section confers jurisdiction, not on justices of the peace generally, but on “any justice of the peace in said City” of Kansas. A justice of the peace being a court of inferior jurisdiction and, moreover, this proceeding being for the enforcement of a lien of a special tax bill against the property of a citizen, the jurisdiction must not only in fact exist in the justice, but it must appear affirmatively in the proceedings before him. State v. Metz, 26 Mo. 65; City of Marshall v. Standard, 24 Mo. App. 198, 199; Hansberger v. Railroad, 43 Mo. 199; The K. C. & St. J. Ry. Co. v. Campbell, 62 Mo. 585. But an avoidance of this rule is attempted by getting an amended transcript from the justice which does show him to be justice of the peace in the City of Kansas. This amended transcript does not show any mistake in the foregoing, but does show that the justice aftered his docket after the rule served upon him, so as to make it show jurisdiction, where, at the time the proceedings were had, it did not appear. We are of the opinion that this cannot be done. For jurisdiction in cases like this may be said not to depend on the fact, but on such fact appearing in the proceedings. If such fact does not appear, the proceedings are coram non judice.

It is not to be controverted that when the judgment was rendered it was void. It was void when this execution was issued and levied, and I cannot see how alterations can be made 'to relate back and give life to proceedings which were utter nullities. It has been held that in replevin a statement which fails to give jurisdiction to a justice of the peace cannot be amended in the circuit court so as to show jurisdiction. Gist v. Loring, 60 Mo. 487; Madkins v. Trice, 65 Mo. 656. The same is held in suits against railway companies where there was nothing on the face of the proceedings showing the stock was killed in the township of the justice of the peace. Haggard v. Railroad, 63 Mo. 302. So, the same has been held as to proceedings for a county road on appeal from the county court. Fisher v. Davis, 27 Mo. App. 321. In Cunningham v. Railroad, 61 Mo. 33, a justice of the peace failed to state that the parties could not agree as to the value of the material taken, and proceeded to appoint householders to ascertain the damage. It was held that the failure of the parties to agree was a jurisdictional matter that should have been recited in the proceedings ; that the record itself should show this, and that it could not be shown by extraneous, evidence. The case of Brahmstead v. Ward, 44 Wis. 591, was in some respects like the one before us. The justice there failed to state in his docket the place to which an adjournment was taken. On appeal a rule was made upon him for a further return, which he made, and in which he stated the place ; but the supreme court held that a subsequent entry would not restore jurisdiction. In Brown v. Kellogg, 17 Wis. 475, the justice stated, orally, the hour to which the case was adjourned but failed to enter it in his docket. On the day to which the adjournment was taken he inserted the hour where it should have been inserted in the first instance, and the court held such entry could not restore jurisdiction.

We are referred to Karnes v. Alexander, 92 Mo. 660. It has no application here from the fact that it is stated in the opinion that it was admitted that the proceedings before the justice in that case did show him to be a justice of the peace in Kansas City. The oral evidence admitted and not contradicted, showing that the justice was a justice of the peace in Kansas City, will not avail plaintiff. The record itself must be relied upon without outside aid. Cunningham v. Railroad, 61 Mo. 33; Colville v. Neal, 2 Swan. 89. If evidence aliunde should be held to aid or supply the place of the record the rule that the face of the proceedings should show jurisdiction would be without meaning or potency.

The judgment is reversed.

Smith, P. J., concurs; Gtll, J., not sitting.

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Rehearing

ON 'REHEARING.

Ellison, J.

We are cited to the case of Harris v. Hunt, 97 Mo. 571, as decisive of this controversy. That case presents a new question not noticed in Karnes v. Alexander, supra, or in the original opinion herein. But it does not meet this case from the fact that in that case it is admitted that Kansas City is in Kaw township, and that the justice of the peace who rendered the judgment in that case had his office in Kansas City, while in this case no such admission is made. So, while there is a recital in this case that the judgment was rendered before a justice of the peace within and for Kaw township, it not being admitted that Kansas City is a part of, or is within, Kaw township, and we not being able to take judicial notice of that fact (Backenstoe v. Railroad, 86 Mo. 492), there is nothing to show, in this case, as there was in Harris v. Hunt, that the justice rendering the judgment was a justice of the peace in Kansas City.

The judgment, with the concurrence of Smith, P.’ J., is reversed.