264 S.W. 43 | Mo. Ct. App. | 1924
Lead Opinion
The record tends to show that on March 14, 1921, before Wm. J. Blesse, justice of the peace of Fifth District, city of St. Louis, plaintiff filed an account in the above cause, reading: "Suit on an account as per statement attached $80.50." The statement is as follows: "To balance: Dec. 7. To Merchandise $80.50." Upon summons a trial was had, both parties appearing thereat, and judgment was rendered for defendant. Plaintiff thereupon filed its affidavit and bond for an appeal, and was granted an appeal to the circuit court of the city of St. Louis. Thereafter, on October 27, 1921, a transcript in said cause was filed with the clerk of the circuit court of said city. So much of said transcript as is pertinent to the issues here involved, reads:
"Alias summons issued to Constable P.A. Austin March 31, 1921, returnable April 15, 1921, at 8 A.M. Alias summons returned duly served by Constable P.A. Austin March 2, 1921. Cause continued to April 25, 1921, at 8 A.M. further to May 10, 1921, at 8 A.M., further to May 26, 1921, at 8 A.M.
"Now on this day and hour cause set for trial, parties appear ready for trial; the justice heard the evidence submitted and after considering the same finds in favor of defendant and against plaintiff.
"It is therefore adjudged by the Justice that plaintiff recover nothing of defendant Chas. W. Ingraham.
"Now on this 7th day of June, 1921, comes J.F. Dixon, attorney for the plaintiff, and files affidavit for an appeal from the judgment of the justice and bond in the sum of $50, with Illinois Glass Company, J.F. Dixon, as surety."
When the cause reached the circuit court the case was called for trial on May 18, 1922, and was continued by consent of both parties to June 12, 1922. On said last-mentioned day the case was called, and was passed to June 13, 1922, on which day a trial was had, defendant failing to appear, and the court rendered a judgment, *16 including interest, in favor of plaintiff for $89.36. Thereafter, on January 9, 1923, at a subsequent term of court, an execution was issued on said judgment and notices of garnishment were served on S.S. Kresge Company, a corporation, and F.W. Woolworth, a corporation, garnishees herein.
On February 8, 1923, the defendant filed his motion to set aside the judgment, quash the execution, and dismiss the appeal, and, as a ground for the motion, alleged that the circuit court was without jurisdiction, because it appeared from the transcript of the justice that judgment was entered on May 26, 1921, and an appeal from the justice court was not taken (until June 7, 1921) within the ten days as prescribed by law, and on February 27, 1923, the court sustained the motion.
On March 1, 1923, plaintiff filed a motion to set aside the order sustaining defendant's motion to set aside the judgment, etc., which motion was overruled by the court on March 15, 1923.
On February 10, 1923, plaintiff filed its motion for a rule to amend the transcript of the justice, which motion stated, in substance, that the cause was continued from May 26, 1921, to June 6, 1921, by the justice, and that the cause was tried on said June 6, 1921, before said justice, both parties appearing, the justice rendering judgment on said June 6, 1921, for defendant; that plaintiff duly appealed from said judgment on June 7, 1921, by filing its affidavit and appeal bond, which bond was approved and an appeal allowed to the circuit court; that through inadvertence, oversight and mistake, the justice's transcript failed to show a continuance from May 26, 1921, to June 6, 1921, and to show a judgment entered on said June 6, 1921. This motion for a rule to amend the transcript of the justice was overruled by the circuit court on March 27, 1923. On March 28, 1923, plaintiff filed its affidavit for appeal, and was allowed an appeal to this court.
On March 15, 1923, a hearing was had on plaintiff's motion to set aside order sustaining defendant's motion to vacate judgment, quash execution, dismiss appeal and *17 to overrule said motion filed. Plaintiff offered to prove in support of its motion that the judgment of the justice of the peace was rendered on June 6, 1921; that the appeal was allowed on June 7, 1921, offering the docket of the justice of the peace showing the entry of judgment on June 6, 1921, and offering to prove by the clerk of the justice who drew up the transcript that he inadvertently omitted showing a continuance from May 26th to June 6, 1921.
The following colloquy between the court and the parties counsel took place:
"THE COURT: That does not look like a docket to me.
"MR. DIXON: It is marked `docket.'
"THE COURT: That is not the docket; that is not the official docket of the justice court; you have got here a memorandum docket that the judge keeps, like I make memorandums here, that may be incorrect, right in front of me. The docket is that which is entered by the clerk in a big, thick docket book.
"MR. DIXON: I have got the clerk here to show that the entries are correct, if your Honor please.
"THE COURT: The clerk can't show them unless he puts his official docket before him."
"On March 27, 1923, a hearing was had on plaintiff's motion for a rule to amend the transcript of the justice of the peace. In support of its motion, plaintiff offered to prove that the justice rendered judgment for defendant on June 6, 1921, and not on May 26, 1921, and that the transcript is erroneous in failing to show a continuance from May 26th to June 6, 1921. Plaintiff offered in evidence the files, summons, papers and transcript of said judgment; also memoranda on back of summons reading as follows: "June 6th, 8a 1921, judg. for deft. W.J. Blesse," and that the memorandum was made by the said justice; that Mr. Wood appeared before said justice on June 6, 1921, testified in this case, and that judgment was rendered on June 6, 1921, which offer the court overruled.
Two motions on the garnishment proceedings against the garnishees were filed, asking the court to set aside *18 the order discharging the garnishees and dismissing the garnishments. Plaintiff offered to prove the same facts above related and made the same offer. The court overruled the two motions.
On January 12, 1923, notices of garnishment were served on S.S. Kresge Company and F.W. Woolworth, in pursuance of said execution. They were in due substance and form.
On March 1, 1923, the court ordered S.S. Kresge Company and F.W. Woolworth Company, the garnishees, discharged and the garnishments dismissed, on the ground that the court had no jurisdiction in the subject-matter of this cause.
On March 3, 1923, plaintiff filed a motion to set aside the order discharging the garnishees, which motion the court overruled on March 15, 1923.
The record shows that plaintiff duly appealed from the order discharging the garnishees, and no question is here made of it.
I. Such part of section 2727, Revised Statutes 1919, as is pertinent, reads: "Every justice of the peace shall keep a docket, in which he shall enter: Third, the time when the parties appeared before him, either with or without process, or upon return of the process; fifth, every adjournment, stating at whose request and at what time; sixth, the time when the trial was had, stating whether the same was by jury or by the justice."
On its motion for a rule to amend the transcript of the justice, filed February 10, 1923, while plaintiff offered to prove that the justice rendered judgment on June 6, 1921, and not on May 26, 1921; that the transcript is erroneous in failing to show a continuance from May 26th to June 6, 1921, and offered the files, summons, papers and transcript of said justice of the peace, and the memoranda on the back of the summons and the evidence of Mr. Wood, plaintiff failed in any manner to identify by competent evidence the docket of the justice kept in accordance with the above statute or to show what appeared therein, or that it was silent about matters which *19
the statute required it to speak. Justice courts are not courts of record. Therefore, while proceedings before a justice of the peace may be shown by the papers or cause of action on file, or by the officers of the court; and while it may be shown that proceedings are not entered in books, or that the docket is silent as to such matters, or that an ambiguity exists which may be explained, yet, where the docket required to be kept by the statute speaks, parol evidence is not admissible to contradict, explain away, or vary or impeach it. [Sutton v. Cole,
II. This leaves for decision the question of the efficacy of defendant's motion to vacate the judgment, quash the execution and dismiss the appeal, and the court's order so doing. Section 2891, Revised Statutes 1919, regarding appeals from justices' courts reads: "No appeal shall be allowed in any case unless the following requisites be complied with: First, the appeal must be made within ten days after the judgment was rendered, but if a nonresident of the county where the suit shall be instituted, the party shall, in all cases of appeal allowed by this article, have twenty days to make such *20
appeal." On February 27, 1923, during the hearing on defendant's last-mentioned motion, plaintiff's counsel stated that it was admitted that plaintiff was a resident of the city of St. Louis, Missouri, at the times involved in the case. This is what is known as a judicial admission, and plaintiff is bound thereby. In 1 R.C.L., page 469, sec. 4, it is said: "One class of admissions consists in statements made by parties in the course of judicial proceedings, generally termed `judicial admissions.' Such statements are evidence against a party and may constitute the basis of a verdict, whether made in pleadings or other written assertions or orally by counsel." [Pratt v. Conway,
We think defendant's motion to vacate the judgment, quash the execution and dismiss the appeal, was proper procedure. 15 R.C.L., page 716, section 168, states, in substance, that a motion or petition to set aside the judgment, filed with the court rendering it, by the defendant, performs the functions of a writ of error coram nobis or audita querela. Inasmuch as the transcript of the justice of the peace shows that the appeal to the circuit court was not taken in ten days from the day of judgment, the circuit court failed to acquire jurisdiction, and its judgment on the account in favor of plaintiff was without authority of law and a nullity. As was said in People v. Greene,
Relative to plaintiff's two appeals from the order of the court below dismissing the garnishments, it is evident from what we have said that they rise or fall upon our decision in the principal case.
It follows, that the action of the court below in vacating the judgment, quashing the execution and dismissing the appeal and garnishments, should be sustained.
The Commissioner recommends that the judgment be affirmed.
Addendum
The foregoing opinion of DAVIS, C., is adopted as the opinion of the court. The judgment of the circuit court is accordingly affirmed. Allen, P.J., Becker and Daues, JJ., concur.