Livingston v. Allen

80 Mo. App. 521 | Mo. Ct. App. | 1899

BOND, J.

Waiver: jurisdiction. The Singer Manufacturing Company is a New Jersey corporation, entitled to do business in this state under n certificate to that effect from the secretary of the state of Missouri. It has a business office in St. Louis, and branch offices in other cities of the state. Plaintiff Livingston is a citizen of Howell county, Missouri, and signed an indemnity bond to the Singer Manufacturing Company on behalf of one of its employees. Livingston made a trip to St. Louis, and while there was sued before a justice for $300, the penalty of said bond. He appeared to the action, which resulted in a judgment against him and in favor of the Singer Manufacturing Company. Execution was issued thereon and a-return of nulla tona had, whereupon a transcript of the justice’s proceedings was filed in the circuit court of the city of St. Louis and an execution thereon issued to the sheriff of Howell county, which was levied upon certain personal property of said Livingston, who replevied the same in the present action, which was tried by the judge of the circuit court without a jury, and a verdict and judgment rendered in favor of Livingston and against Allen, the sheriff of Howell county. The latter appealed to this court, and assigns for error first, the refusal of the circuit court to declare the law to be that ho was entitled, to a judgment, and, secondly, “that if A. H. Livingston was a resident of Howell county, Missouri, and was served with, process in the city of St. Louis, issued from a justice of the peace, and be went into said court, in pursuance of said process, and announced ready for trial and participated in tbe trial, by such act be waived tbe jurisdiction over bis person.”

We are of the opinion that the latter declaration of law should have been given. The argument in favor of the ruling of tbe trial court is based upon tbe decision of tbe supreme court in Smith v. Simpson, 80 Mo. 634. In that case the. suit was brought before a justice in a county in which neither tbe plaintiff nor defendant lived, but tbe evidence showed that tbe defendant moved, in the justice’s court to dismiss for want of jurisdiction, and that when bis motion was overruled by tbe justice be “retired and judgment was taken against him by default,” from which he appealed to the circuit court, and there renewed his motion to dismiss the suit, which was sustained. The supreme court affirmed the ruling of tbe circuit court. Tbe facts in judgment in that case are essentially different from those in tbe one at bar. Here tbe defendant appeared generally in the justice’s court and took no appeal from the judgment rendered against him in that tribunal, but seeks to attack it collaterally by replevying tbe property levied upon by an execution awarded by the circuit court upon judgment and transcript of the proceedings before the justice. This can not be done under tbe facts in tbe record. Tbe suit being on a bond for $300, tbe justice clearly bad jurisdiction of tbe subject-matter. R. S. 1889, sec. 6123; Leonard v. Sparks, 117 Mo. 103, The general appearance of the defendant in the justice’s court gave jurisdiction of bis person. Rechnitzer v. Railway, 60 Mo. App. 409; Ashby v. Holmes, 68 Mo. App. 23. These facts appearing on the face of the proceedings upon which the judgment before.the justice was based, it was not open to collateral attack. Wise v. Loring, 54 Mo. App. loc. cit. 262. The circuit court therefore erred in refusing the second declaration of law requested on behalf of defendant. Its judgment is reversed and the. cause remanded, to be tried in conformity with this opinion.

All concur.