Harding v. City of Carthage
78 S.W. 654
Mo. Ct. App.
1904
Check Treatment
BROADDUS, J.

This is a proceeding commenced by appellants against respondent in the Jasper county circuit court for the purpose of enjoining and restraining respondent from issuing certain bonds theretofore voted by its citizens to construct an electric light plant and to prevent the erection of such plant. The petition was filed December 23, 1898 (while the December term of court was in session), a summons issued the same day returnable to the June term, 1899, of the said circuit court. No temporary restraining order was asked for or obtained. The summons was served December 24, 1898. On January 3, 1899, defendant entered its appearance in said cause, filed an answer, and filed a motion asking the court to set said cause down for trial during the December term of court, and duly gave appellants notice of the filing of said answer and motion. And on January 28,1899, the court sustained said motion and set the case down for trial on February 6, 1899. Appellants on February 4, 1899, filed their motion to set aside said order, which motion was by the court overruled. On February 6, 1899, said cause coming on for hearing, appellants failed and refused to appear and prosecute their case, and the court dismissed the case for failure to prosecute the same. On the same day appellants filed their motion to set aside the order setting the case for trial and to set aside the order overruling-appellant’s previous motion to set aside said order, and to set aside the order dismissing the case for failure to prosecute the case, which motion was by the court overruled, and appellants appealed to this court. Appellants have printed the record substantially in full and the only question in the case is the authority of the cir*19euit judge to set the ease down for trial at the December term of said court. • -1

The Jasper county circuit court holds four terms ai year commencing on the first Monday in March, June,. September and December, respectively. The March and September terms are held in Carthage and the June and! December terms in Joplin. Chapter 84, Revised Statutes 1889, entitled Injunctions, provides the manner of obtaining injunctions and how. they shall he heard and determined, but it only provides for their hearing in cases where a temporary injunction has been obtained. Section 5505 idem is as follows: “After the answer is filed, a motion may be made at any time in term to dissolve the injunction, and upon such motion the parties may introduce testimony to support the petition and answer, and the court shall decide the motion upon the weight of the testimony without being hound to take the answer as true.” Such injunctions may be granted by the circuit court or judge in vacation and in certain cases by the probate court or the judge thereof in vacation, or by the county court or two judges thereof. Sections 5548-49.

But the chapter in question does not undertake to regulate the practice for hearing in cases where there has been no temporary injunction. It then necessarily follows that the hearing must be as provided by the general provisions of the code. When a petition is filed either in term or in vacation and no temporary injunction is asked, the clerk issues process, as in other cases, returnable to a future term, at which if defendant is served in time as provided by the code, he is required to answer and the case stands for trial. Or, the defendant may waive service of process and enter his appearance which will have the effect of giving the court jurisdiction of his person.

Section 2013, Revised Statutes 1889 (now section 566, Revised Statutes 1899) provides how suits may he instituted, viz.: “By filing a petition and the volun*20tary appearance of the adverse party; or, by the filing of a petition and suing out process thereon.” It may therefore be conceded that as the object of the process is for the purpose of giving the adverse party notice of the proceedings, that his voluntary appearance amounts to a waiver of process, and the court’s jurisdiction is as complete as if the process had been served upon him. It is agreed here that the court had jurisdiction of the subject-matter of the suit, and, as we have seen, had jurisdiction of the parties. But the contention is, that the court was not authorized to hear the case at the December term, 1899, during which the suit was begun, but that the June term to which process was returnable was the trial term. Section 2042, Revised Statutes 1889, provides when a defendant served with process shall plead to the petition and when the case shall be triable. But this section refers solely to cases where the defendant is served with process; that is, where it has obtained jurisdiction of his person by notice. It has no reference whatever to cases where the defendant has conferred jurisdiction by his entry of appearance. The section requires service of process to be had for a certain number of days before the beginning of the term. The object of the statute is to give defendant sufficient time after notice to prepare for trial. But if he pleads to the petition he waives timely notice. And it occurs to us that the court is thereby possessed of complete jurisdiction of the case and may or may not proceed with the trial, as the circumstances demand. ¥e can see no good reason why a court when the pleadings of a case are complete should not proceed to trial if the parties are ready. The object of the code is to provide for the speedy administration of justice. Under such circumstances it would be the duty of the court to set a day for trial to enable the parties to make the necessary preparation. In this case plaintiffs were notified of the filing of defendant’s answer and of its motion to have a day fixed for trial. The plaintiffs appeared on the 28th of *21January, the time fixed for the hearing of the motion, which the court sustained and set the case for trial on February 6. . When the day for trial arrived plaintiffs did not appear to urge any objections to a hearing and their case was dismissed for want of prosecution. The only ground urged here against the action of the court is, that the court had no authority to try the case prior to the return term of the writ. But we are of the opinion that defendant’s entry of appearance by filing its answer at the December term made such term the trial term. The issues between the parties had been made on the pleadings. Under such conditions there can be no good reason given why the court may not set a case for trial during the term, as well as at any future term. And the plaintiff need not suffer any hardship by reason of the unexpected appearance of the defendant if sufficient time be given him to make his preparation for trial. The code has provided for all such contingencies. See section 2123, idem. The plaintiffs come into court-in the first place asking for a hearing and they should not be allowed to complain of the action of defendant who waives all preliminaries and tenders them a speedy trial. They ought at least to be as vigilant as their adversary they have placed on the defensive.

Affirmed.

All concur.