Haag v. Ward

89 Mo. App. 186 | Mo. Ct. App. | 1901

SMITH, P. J.

This is an action on a special taxbill which was brought before a justice of the peace. The statement contained the usual allegations in actions of the kind, supplemented with the further allegation that defendant Ward was receiver under an appointment of the United States circuit court for the western district of Missouri of the co-partnership estate of John J. Mastin & Co., and that as such receiver, with the other defendants (naming them), own, or claim to own said land, or some interest therein.

There was a judgment by default. Afterwards, by the appeal taken by the receiver, the cause was removed to the circuit court. The receiver neglected to give the notice of the appeal required in such cases by the statute. Eevised Statutes 1899, section 4075, 4076. Afterwards, the plaintiff filed a motion to affirm the judgment of the justice, which was sustained. The receiver thereupon took his appeal here.

The only question arising on the record now before us is, whether or not the statement alleges facts sufficient to constitute a cause of action ? It is contended by the receiver that it is fundamentally defective in that it does not allege that leave was granted plaintiff by the court appointing him to bring the suit.

The general rule is that in cases where a judgment of the justice is affirmed, as here, the appellant can have no adjudication in the circuit court as to the sufficiency of the statement filed with the justice unless he duly prosecute his appeal and by notice brings the appellee into the appellate court. Wolff v. Coffin, 46 Mo. App. 190; Cooksey v. Railway, 17 Mo. App. 132; Horton v. Railway, 26 Mo. App. 349; Holloman v. Railway, 92 Mo. 284. But where the statement omits a jurisdictional fact, the rule just quoted would, of course, be inapplicable.

In Kirk v. Kane, 87 Mo. App. 274, it was said by us: “The authorities all declare with one accord that unless expressly authorized by statute a suit can not be brought against a receiver without tho permission of the court appointing him.” The rule seems very well established that it is npcessary to allege in the complaint, petition or declaration, against a receiver, that leave of a court has been granted to bring the action-. High on Receivers, sec. 254; Smith on Receivers, 192; Smith v. Railway, 151 Mo. 402; Burk v. Muskegon Mach. & F. Co., 98 Mich. 614; Keen v. Breckenridge, 96 Ind. 69.

The authorities are conflicting as to whether or not the want of leave to bring the action against a receiver is jurisdictional and, therefore, fatal to the action. “The better considered authorities, however, support the proposition that leave to sue the receiver is jurisdictional in its nature and that its omission is fatal to maintaining the action.” High on Receivers, sec. 254a; Smith v. Railway, supra; Barton v. Barbour, 104 U. S. 126; Brown v. Rauch, 1 Wash. 497; Garver v. Kent, 70 Ind. 428; Keen v. Breckenridge, supra; Martin v. Atchison, 2 Idaho 590. And since the want of leave to bring the action goes to the jurisdiction of the court and is not merely error, the question may be raised at any stage of the cause and even from an appeal from a judgment against a receiver, and where he has not raised it in the trial court. High on Receivers, p. 224; Brown v. Ranch, supra. The receiver by his appeal waived nothing. It will be seen from the two last-cited authorities that the rule laid down in Bornschein v. Finck, 13 Mo. App. 120, and other eases, is inapplicable in a case of this kind.

It is true, this was a statement filed with a justice of the peace where formality is not required. Such statements are sufficient if they state in substance a cause of action. Leave to sue the receiver being a jurisdictional fact, it could no more be dispensed with in a statement of a cause of action to be filed with a justice than in a petition to be filed in a court of record. It was a basic fact, without the allegation of which a judgment would not be supported by the statement.

But the plaintiff suggests that even though his statement does not allege that leave to sue was granted him, yet if it anywhere appeared in the record that this unalleged essential was proved, that then that will suffice. But we can not see that if this were so that it would help the plaintiff out of his predicament, for it is not disclosed by the record that any such proof was made in the case. It is true, he has filed what he is pleased to term an additional abstract of the record in which it is stated that on the hearing of his motion to affirm, in the court below, he introduced a certified copy of the order of the federal court granting him leave to bring the suit. But as there was no bill of exceptions taken whereby the evidence introduced on the motion was preserved, it, of course, is no part of the record and can not be noticed by us. The fact that there is no way by which such proof could be preserved in such case, only emphasizes the necessity of pleading the leave to sue.

It, therefore, results that since the judgment of the justice was invalid, the action of the circuit court affirming it imparted to it no validity. Upon the face of the record neither of these judgments are valid. The judgment of the circuit court will be reversed and cause remanded, with directions to grant leave to the plaintiff to amend his statement if he shall request it.

All concur.