196 Mo. App. 565 | Mo. Ct. App. | 1917
This was an action, brought September 19, 1914, to set aside a judgment rendered by the circuit court of Jackson county on April 2, 1913. After a decision adverse to the petition, the case comes here by way-of appeal.
To understand the nature of the judgment sought to be destroyed and the reasons appellant has for seeking
Appellant, Karicofe, defaulted in the payment of a deed of trust he had given, and the property was duly foreclosed and sold to the respondent, Schwaner, he receiving a trustee’s deed in due form. Karicofe refused to give possession of the premises, and Schwaner brought an action in unlawful detainer against him in a justice court. Summons was duly issued and served, the parties appeared, and on August 23, 1912, judgment for possession and damages was awarded. On August 29th, the sixth day after the rendition of the judgment, Karicofe filed an affidavit and bond for appeal, and on that date the justice made an order allowing an appeal to the circuit court. A transcript of the record and proceedings, together with the original papers, was filed in the circuit clerk’s office on September 3, 1912.
On the 2nd of April, 1913, the case came on for trial but Karicofe did not appear. His default was noted, and thereupon the evidence for the plaintiff was heard and the circuit court rendered judgment in Schwaner’s favor for possession of the premises and for damages. At the same term and on April 6, 1913, Karicofe filed a motion to set aside the judgment. Said motion set up that he, Karicofe, was born August 12, 1893, and consequently was not yet 21 years old and would not be until August 12, 1913; and the ground of said motion was that he was a minor and no guardian ad litem had been appointed for him either in the justice’s or in the circuit court. On the hearing of this motion, evidence was offered in support thereof, and also evidence was introduced showing that in obtaining the loan secured by the deed of trust which was foreclosed, Karicofe had, on April 3, 1912, made an affidavit that he was then 21 years old, and Ms parents had likewise made affidavit that he was born on August 12, 1890. The court, after hearing the evidence on said motion, overruled it. Thereupon Karicofe took steps looking toward an appeal. He filed the necessary affidavit, and an appeal was allowed but it
Two grounds are relied upon as the basis of appellant’s right to have the judgment annulled. First. That the circuit' court acquired no jurisdiction over, or power to hear and determine, the unlawful detainer suit. Second. That at the time said court rendered judgment Karicofe was a minor, and no guardian ad litem having been appointed for him, the court was without power to render a judgment against him.
The first ground invoices the principle that in an unlawful detainer suit the justice court has exclusive original jurisdiction, and, unless an appeal therefrom is applied for within the time allowed by statute, no jurisdiction over that particular case is acquired by the circuit court, for the only jurisdiction it can acquire is appellate. Nor, in such case, will the appearance in the circuit court of the opposite party confer jurisdiction. [Robinson v. Walker, 45 Mo. 117; Sidwell v. Jett, 213 Mo. 601; In re grading Bledsoe Hill, 222 Mo. 604, 608.] Appellant alleges in his petition that at the time the justice rendered judgment, to-wit, on August 23, 1912, the circuit court was in session and the term continued thereafter till September 7. Under section 7705, Revised Statutes 1909, if the judgment of a justice in an unlawful detainer suit be rendered during the term of the circuit court, the appeal is returnable within six days after the rendition of the judgment. Section 7704 provides that no appeal shall be allowed unless the same be applied for and an affidavit and recognizance filed with the justice before the return day of the appeal. Section 7716 provides that the appellant shall cause to be filed in the circuit clerk’s office a transcript of the record and proceedings, together with the original papers on or before the return day of the appeal. The justice’s judgment was rendered- August 23, the affidavit and recognizance were filed on the 29th and the transcript was filed in the clerk’s office September 3rd. Consequently appellant as
Respondent argues that inasmuch as section 7717 provides that if the appellant fails to file the transcript and papers on or before the return day of the appeal the appellee may produce them and the judgment shall be affirmed unless the appellant presents good cause for his default, and since' the circuit court tried the case as
But it does not follow from this that appellant is entitled to succeed in his efforts to destroy the judgment. The claim that the appeal from the justice was not taken in time, rests upon the alleged existence of something "outside of the record and of the judgment roll. The judgment attacked, therefore, occupies a vastly different status than if the alleged fact appeared upon the face
So that we are of the opinion that this is purely a collateral attack upon the judgment sought to b.e destroyed; that since the circuit court tried the case as if a fact existed which made the appeal properly and timely taken, and there is nothing on the face of the record to show to the contrary, it is presumed that the court found that such fact existed; and that, if the ■court erred in such finding, then the remedy to correct that error is the same as when other erroneous decisions are made. [Hadley v. Bernero, 103 Mo. App. 549, 553-560.]
Even if the petition' herein could be regarded as in the nature of a petition for a writ of error coram nobis, yet that will not lie for the correction of an error as to such a fact as the one now under consideration, namely, that the justice’s judgment was rendered during a term of the circuit court. As to such a fact, that was a
However, if the petition herein could be considered in the light of an application for a writ coram nobis, it would lie to open up the judgment on the ground that the one against whom the judgment was rendered was a minor. [Powell v. Gott, 13 Mo. 459; Jeude v. Simms, supra, 2 Tidd’s Practice, 1136; Life Assn. of America v. Fassett, 102 Ill. 315.] Appellant appeared in the circuit court and filed a motion in the nature of a writ coram nobis on that ground and the question of his infancy was investigated but the court found that he was of age. This might perhaps produce the same result as if the question of minority had been raised in the original suit and the court had expressly found that the party against whom the case was brought was of age. In which case it would be a question whether the writ coram nobis would be the proper remedy, as the claimed fact of infancy in that event would not be one. consistent with the record, nor would the judgment be one that would not have been rendered had the attention of the court been directed to the question of infancy. But, if the appellant was a minor at the time the motion in the original case was filed, doubtless the filing of the motion was nothing. It was the same as if he had never filed it. Hence, if the petition in the case at bar can be treated as being in the nature of an application