230 S.W. 82 | Mo. | 1921
In this case the Kansas City Court of Appeals rendered a decision (Cudahy Packing Co. v. C. N.W. Ry. Co., 207 S.W. 70) which it deemed contrary to a previous decision (Swezea v. Jenkins,
Plaintiff Packing Company sued in a justice's court to recover from defendant Railway $156.75 damages for losses it alleges it suffered by reason of defendant's failure to re-ice a car of meat. Summons issued and an attempt at service was made. A motion to quash the return was overruled by the justice. Defendant made no further appearance in the justice's court, and judgment went for plaintiff. In due time defendant filed its affidavit and bond for appeal. The appeal was duly granted *454 by the justice and the case properly lodged in the circuit court. In that court defendant filed its motion to "quash, set aside and vacate" the writ of summons and the return thereon. This motion was overruled. Defendant made no further appearance, and judgment again went for plaintiff. From this judgment defendant appealed to the Kansas City Court of Appeals, which affirmed it and transferred the cause to this court for the reason stated.
Several questions are discussed in the briefs, but the Court of Appeals disposed of the case by a ruling that the taking of an appeal from a justice's court "waives the question of defective summons" in that court "and amounts to a general appearance in the circuit court." This ruling, if correct, disposes of the case. The question would not seem to require much space for its discussion were it not for the fact, pointed out by the Court of Appeals, that there is considerable conflict in this State in the decisions upon the subject. In view of this it is necessary to examine several previous decisions.
The effect of an appeal from a justice's court upon defects in or want of summons or service in that court depends upon the governing statute. That the Legislature constitutionally may enact that such an appeal, taken to a court where a trial denovo is to be had, shall constitute a general appearance in the cause, cannot be seriously questioned. Decisions subsequently referred to disclose that no constitutional obstacle is thought to intervene. The question in this case, therefore, concerns solely the meaning of the applicable statute as written.
In 1835 (Sec. 8, p. 370, R.S. 1835) it was enacted that upon the filing of the transcript "in the clerk's office, the court shall be possessed of the cause, and shall proceed to hear, try and determine the same anew, without regarding any error, defect or other imperfection in the proceedings of the justice." In the first case we have found in which this court referred to this section, it is clearly indicated that the court thought the taking of *455
an appeal from the justice constituted an appearance having some efficacy to waive the insufficiency of the return of the summons in the justice's court. [Atwood v. Reyburn,
Thereupon the Legislature came to the rescue. In 1879 (Sec. 3052, R.S. 1879) the old statute (Sec. 13, p. 724, G.S. 1865), which had remained the same since 1835 and under which the varying decisions referred to had been rendered, was amended to read as follows:
"Upon the return of the justice being filed in the clerk's office, the court shall be possessed of the cause, and shall proceed to hear, try and determine the same anew, without regarding any error, defect or other imperfection in theoriginal summons or the service thereof, or on the trial,judgment, or other proceedings of the justice or constable inrelation to the cause."
The italics indicate the words added by the amendment. This change in the law seems designed to reach the question left in doubt by the decisions. The Circuit Court of Linn County thought so in Brandenburger v. Easley,
In 1875 the St. Louis Court of Appeals had been established. In 1882 in Gibbs v. Railway,
In due time the Meyer case came on for hearing in this court. [Meyer v. Ins. Co.,
The practically universal rule in other jurisdictions is that an appeal from the judgment of a justice of the peace to a court where a trial de novo must be had waives all defects of jurisdiction over the person of the appellant and amounts to a general appearance in the appellate court. [2 R.C.L. sec. 96; 24 Cyc. pp. 694, 695.] In notes to Gulf Pipe Line Co. v. Vanderberg,
The purpose of an appeal from a justice of the peace in this State is to secure a "trial anew." That is the sole purpose for which such appeal is permitted by the statute. [Sec. 2902, R.S. 1919.] When a defendant appeals he therefore appeals for that purpose and no other. The very lodging of the appeal in the circuit court constitutes an invocation of the appellate jurisdiction of that court; and, since the circuit court, on such an appeal, has no appellate jurisdiction except for the purpose of a trial anew, it is an invocation of that *461 court to exercise its jurisdiction in a trial anew. This of itself constitutes such an appearance as to waive defects in or absence of summons or service. In this State this principle is supplemented, as already pointed out, by one statutory provision (Sec. 2902, R.S. 1919) which expressly directs the circuit court on appeal to disregard every "error, defect or other imperfection in the original summons or service thereof," and another which expressly provides (Sec. 2891, R.S. 1919) that "the affidavit and bond for appeal filed shall be taken and considered by the appellate court as an entry of appearance." No defendant is obliged to appeal. If not served properly he may elect whether he will or will not appeal. If he does so, he must abide the consequences. He has appeared. If he does not appeal and the service proves good, his "judgment" was bad and the justice's judgment will stand. If it is not good, then he is in no worse position than any other suitor against whom it is attempted to render a judgment without service of process. Of course, what we have said refers only to defects in jurisdiction over the person.
The case of Meyer v. Ins. Co.,
We think the decision in the case of Meyer v. Ins. Co., 184 Mo. l.c. 488, 489, in so far as the point now in judgment is concerned, is erroneous and should no longer be followed. The same conclusion applies to a like ruling in Swezea v. Jenkins,