78 Mo. 172 | Mo. | 1883
Lead Opinion
It appears by the record that two distinct suits between the parties were originally commenced in the circuit court of Sullivan county, where, by order of court, they were afterwards consolidated. After the consolidation, the plaintiff’, by leave of court, filed an amended petition, the object and purpose of which was the partition of
The controlling question is, whether the Livingston circuit court had or acquired jurisdiction of the subject matter of the cause of action set out in the second amended petition.
The action thus stated, it will be seen, is ejectment. The subject matter a tract of land, situated, not in Livingston, but in Sullivan county. Section 3483, Bevision of 1879, provides that: “ Suits for the possession of real estate, or whereby the title thereto may be affected, shall be brought in the county within which such real estate, or some part thereof, is situated.” It is clear, therefore, that the Livingston circuit court had no original jurisdiction over the subject matter of the cause of action in said second amended petition. It is contended, however, that it acquired jurisdiction by reason of the proceedings originally
It may be conceded that the transfer from the Sullivan to the Livingston circuit court was regular, in this case. It may be also conceded that, after the transfer, the cause may be prosecuted to final judgment, as if-no change of venue had occurred, and that any amendment permissible in the former is allowable in the latter. But, in neither court, can a ^plaintiff so amend as to state an entirely new cause of action. The rule is, that the previous pleading must show that the cause of action presented in the new pleading is the same as that upon which the action was originally based. The eourfs are always liberal in allowing amendments, so long as the original cause of action is not changed thereby. This position is abundantly supported by the following authorities: Bliss on Code Plead., § 429; Lottman v. Barnett, 62 Mo. 159; Gibbons v. Steamboat Fanny Barker, 40 Mo. 253; Milliken v. Whitehouse, 49 Me. 527; Cooper v. Waldron, 50 Me. 80; Sumner v. Brown, 34 Vt. 194; Steffy v. Carpenter, 37 Pa. St. 41; Snead v. McCoull, 12 How. 407, and Walden v. Bodley, 14 Pet. 156.
It may likewise be conceded that all amendments, that are germane to the original proceeding, and all pleadings, the purpose of which is to substitute another cause of action, of which the court has jurisdiction, are matters of exception, to be saved by bill; but where the new petition filed under the guise of amendment, sets forth a different cause of action, of which the court has no jurisdiction, and that fact appears upon the face of the new. petition, the action of the court in .permitting it to be filed, and rendering judgment upon it is a matter of error, and may be reviewed here, without saving any exceptions. Bateson v. Clark, 37 Mo. 34. And it may be further conceded, that if the cause of action contained in the second amended petition, is the same, though modified, as that set out in the ¿first amended petition, then the Livingston circuit court
The solution of the question, therefore, depends largely upon the fair construction of these two amendments, but more especially upon the effect of the second amended petition. If it can justly be held that the cause of action set out in the second amended petition, is the same as that contained in the first, then the Livingston circuit court had jurisdiction. But if it should be held that it substituted therefor an entirely new and distinct cause of action, (of which we think there can be no question,) over the subject matter of which the Livingston circuit court had no jurisdiction, then its judgment is void.
That an action for the partition of a given tract of land, by one joint tenant against the others, (and also to compel them to account for rents and profits, or use and occupation,) is not the same as an ordinary action of ejectment, by one of said tenants against the others, for the recovery of his undivided interest therein, (including the monthly value of the rents and profits, damages, etc.,) we think too plain for argument.. That the Livingston circuit court had no original jurisdiction of an action of ejectment for a tract of land situated in Sullivan county, is equally clear. R. S. 1879, § 3483. It follows, therefore, that the second amended petition in this case was the substitution of a new cause of action, and not an amendment of the original cause set out in the original amendment. It operated as an abandonment of the cause of action transferred from Sullivan to Livingston, and substituted in lieu' thereof a new cause of action, over the subject matter of which the Livingston circuit court had neither original nor acquired jurisdiction. In this case, the entire record, in point of fact, is before us, and we fail to see how rule 13 of this court — 74 Mo. Rep. at close of volume — can be of any avail to the plaintiff,
For these reasons, the judgment of the circuit court is reversed and remanded.
Concurrence Opinion
Concurring. — Bray v. Marshall, 66 Mo. 122, was an action of ejectment for lands lying in Dade county. The «ause was tried in the Greene circuit court without objection Rom either party. Nothing appeared in the record showing that the Greene circuit court had acquired jurisdiction of that action in the manner provided by the statute, and on appeal the point was made for the first time in this court, that the proceedings in the Greene circuit court were coram non judice. This court decided, all the judges concurring, that the Greene circuit court had no jurisdiction of the action. A similar ruling was made in Jacks v. Moore, 33 Ark. 31. Parties cannot go to the city of St. Louis, and by agreement between themselves institute and try in the circuit court of that city an action of ejectment for land lying in the City of Kansas ; and if it be permissible to suppose that the circuit court of that city would take cognizance of such a suit, its action in so doing would constitute error on the face of the record.
The case of Ulrici v. Papin, 11 Mo. 42, is not at all analagous to the present. "When a suit affecting lands lying in several counties is brought in one of such counties where it is alleged the greater part of such lands lie, and the contrary does not clearly appear from the petition, objection to the jurisdiction must of course be taken by plea in the trial court. "Whether the greater part of the lands lie in the county in which the suit was brought, may be in some cases a question of fact to be passed upon by the court trying the cause, and when the court renders final judgment in such a cause, that question becomes res judicata, like any other question of fact necessarily involved in the judgment, and such judgment is not thereafter subject to collateral attack. Chouteau v. Allen, 70 Mo. 290, sheds no light on this case. The statute expressly authorizes suits to foreclose mortgages on real property to be brought in any county in which any portion of the mortgaged premises is situated. Where the suit is so brought the court acquires jurisdiction of the cause, and such jurisdiction will not be forfeited because the court may not render judgment against the land lying in the county where the suit is brought. When there are two mortgages on the same land the foreclosure of the first in no manner affects the jurisdiction of the court over a suit to foreclose the second. Suit may still be brought on the second mortgage in any county in which any portion of the land included in the second mortgage is situated. This was done in Chouteau v. Allen, and the statute was sufficient authority for it. The cases cited in argument involving the question of jurisdiction of the person have no possible relevancy to the case at bar. I concur in reversing the judgment and remanding the cause.
Dissenting Opinion
Dissenting. — I dissent because I regard the foregoing opinions radically wrong. These are my reasons:
When the cause was taken by change of venue from. Sullivan to Livingston county, the mandate of the statute was that it should be “ proceeded in and determined as if it had originated therein.” R. S. 1879, § 3736. And the Livingston circuit court, by reason of the transfer, had the right, power and authority to proceed to final judgment in the cause in the same manner, to all intents and purposes, as if the cause had arisen in Livingston county. Ib., § 3741. If the cause of action had remained in the county where it originated, no one would question that if plaintiff had amended his petition, or, if you please, by such amendment, changed his cause of action, and the defendants had answered to the merits and gone to trial, the judgment would have been binding upon them. Ward v. Pine, 50 Mo. 38.
As already seen, section 3736, supra, provides that when a cause is sent by change of venue to another county, it shall be “ proceeded in and determined as if it had originated therein.” The effect of the change of venue, therefore, to all intents and purposes, was the same, so far as concerned the power of the Livingston circuit court, as if the land over which the controversy arose, had been bodily transferred to Livingston county, and the territorial limits of that county had been enlarged by such addition. If the court whence the cause came, could have allowed the amendment or the change of the cause of action, then, so, also, could the court to which the cause was taken — or else the statute means not what it says, and the power of amendment is lost by reason of the change of venue — which is an impossible supposition.
But waiving all the above, I confidently maintain that the Livingston circuit court had jurisdiction over the “subject matter of the action,” and this regardless of any ques
In Vermont, some sheep were replevied in Orange county, but the suit was brought in Washington county, and the writ made returnable to the county court of the latter county. Poland, C. J., speaking of the action, says i “ The statute also provides that the writ shall be returnable to the county court for the county in which the goods are detained. The action being to recover personal property, is of a transitory character, and except for this provision of the statute, might well be brought in any county where either of the parties lived. The general provision of our statute in relation to actions brought to the supreme and county courts, is, that they shall' be brought in the county where one of the parties resides ; and suits before justices of the peace shall be brought in the town where one of the parties lives; but it was never supposed that, if brought in some other county or town, it was a case of want of jurisdiction, so that if the action proceeded to judgment, the judgment would be void. University v. Joslin, 21 Vt. 52. We regard this case as being precisely of the same character, and that the ground on which this case was dismissed, was an objection to the particular process, and not a lack of jurisdiction over the subject matter. In Hall v. Gilmore, 40 Me. 578, under a statute precisely like ours in this respect, it was decided that if the suit be brought in the wrong county, the error, to be available to the defend
In McMinn v. Hamilton, 77 N. C. 300, Faircloth, J., said: “ "Where a court has no jurisdiction of the. subject matter, the objection can be taken at any time, and indeed as soon as this fact is discovered the court mero motu will take notice of it and dismiss the action. But if it has jurisdiction of the subject matter and the venue is wrong, the objection must be taken in apt time; and if the defendant pleads to the merits of the action, he will be taken to have waived the objection. He cannot have two chances.” So, also, where a foreign corporation was improperly served with process, and pleaded to the merits, it was held too late subsequently to raise the point of jurisdiction. Ward v. Roy, 69 N. Y. 96.
In Hembree v. Campbell, 8 Mo. 572, an action of trover was brought in Bade county, but process was served on the defendant in Polk, county. He appeared and pleaded to the merits, but after that successfully moved to quash the writ, and Scott, J., said: “ The question is, whether the motion was properly sustained by the court below ? The statute regulating practice at law directs, that a suit instituted by summons or capias shall be brought, when the defendant is a resident of the State, either in the county within which the defendant resides, or in the county within which the plaintiff resides and the defendant may be found. It was clearly illegal for a plaintiff residing in Dade county to bring suit against a party residing in another county. But the circuit court of Dade county is a court of general jurisdiction; it had jurisdiction of the subject matter of this suit; and if the defendant being served with the process, appeared and pleaded to the merits of the action, thereby acknowledging jurisdiction of his person, he would not be allowed afterward to object to the regularity of the proceedings.” So, also, in Powers v. Browder, 13 Mo. 154, an action of debt removed by change of venue from Benton
What is that something called in section 3519, “jurisdiction of the court over the subject matter of the action ?” I answer that question in this way: It is the authority conferred by law upon .certain courts to hear and determine a certain class of causes. This power thus conferred, is conferred by the law alone, and never can be conferred by the parties. It exists always in the courts, although it can only be brought into exercise by the service of process or the appearance of the parties. When such a court having jurisdiction over a certain class of causes, conferred in a manner as aforesaid, issues its process in a cause belonging to one of those classes, and the process is served, or the parties to the particular suit voluntarily appear to the suit, and no timely objection is taken to the exercise of jurisdiction by the court, the judgment rendered is a finality, whether the “jurisdiction of the court over the subject matter of the action,” be regularly or irregularly exercised. These views of mine are fully supported by the authorities I have cited, as well as by a recent case in New York, Hunt v. Hunt, 72 N. Y. 217; s. c., 28 Am. Rep. 129, where Judge Eolger says: “Jurisdiction of the subject matter, is power to adjudge concerning the general question involved, and is not dependent upon the state of facts which may appear in a particular case, arising, or which is claimed to have arisen, under that general question. One court has jurisdiction in criminal cases; another in civil cases; each in
Since the above was written, a replication has been filed to my dissenting opinion. I care to notice but one point in the reply: In the hypothetical case which I put of a suit for partition brought, and land afterward discovered to be in another county, I asked if the proceedings were to go for nothing. I am told now, that the question of the situation of the land, would be res judicata My understanding has always been that before any question of fact can be thus regarded, the forum where it was determined, must have had jurisdiction. "Wells Mes Judicata, §§ 6, 422, 428.