Olin v. Zeigler

46 Mo. App. 193 | Mo. Ct. App. | 1891

Ellison, J.

This action is founded on a duebill for $100, which is alleged to have been filed with Thomas King, a justice of the peace. The transcript of the justice does not show that the duebill or other statement of a cause of action was filed or lodged with the justice, though it does show that he issued process. A change of venue was taken from Justice King to Justice Mayberry, where defendant moved to dismiss for want of jurisdiction in the justice — no instrument or other foundation of the suit having been filed with King. Whereupon plaintiff asked leave to file a certain duebill as constituting plaintiff’s cause of action. This motion was sustained, and plaintiff appealed, to the circuit court, where plaintiff had judgment, and defendant brings the case here. In the circuit court objection was made to the following affidavit of Justice King, the objection being overruled :

“Thomas King, being first duly sworn upon his oath, says, that he is the justice of the peace, in and for Kaw township,. Jackson county, Missouri; that, on the nineteenth day of December, 1889, Barney Olin, the plaintiff in the above-entitled cause, called at my office and delivered, and I filed with me as the basis of an attachment suit, a duebill, together with an affidavit and bond, which said due bill was for the sum of $100, and is in words and figures as follows : * * * Said duebill so filed with me is hereto attached and made a part hereof; that, at the time the affidavit and attachment bond was given me and signed, the said Barney Olin delivered to me the said duebill, which is now in his possession, or in the possession of his attorney ; that said duebill was not marked filed by me by oversight and mistake, and that through mistake, inadvertence or oversight the said duebill was carried off by said Barney Olin, and the same was not seen by me again until presented to R. H. Mayberry, a justice of the peace, to whom the above-entitled cause was sent by me, on a change of venue, and to whom the plaintiff’s attorney offered this duebill, which was filed with me and asked that the same be made a part of the transcript sent by me to said R. H. Mayberry, and at the time the said duebill was presented to said R. H. Mayberry, I marked the same filed as of former date.”

“ [ Signed] Thomas King,

“ Justice of the Peace.”

A justice of the peace court being an inferior court of limited jurisdiction, the record should affirmatively show such jurisdiction. So, the record here should .show the filing of the duebill, which was the foundation of the action. McQuoid v. Lamb, 19 Mo. App. 153 ; Gideon v. Hughes, 21 Mo. App. 528. It is not necessary that the instrument should have a filing indorsed thereon, but it should be lodged with the justice whether the filing be indorsed or not. And that it has been lodged with the justice should appear from the record.- A statement of the filing or lodging may, perhaps, be omitted from the justice’s docket, but, in such case, the paper itself should then necessarily be among the original papers in the cause in order that jurisdiction may affirmatively appear. The lodging of the paper, which is the foundation of the action, is a requisite to jurisdiction, and it must by some means be made to appear by the record. It does not so appear here. • N o mention is made of it in the transcript of the justice who issued the process, nor was it identified when offered in the justice court where the cause was sent on change of venue. The offer before the second justice is as though it was an original filing with him. and not as having been filed with the first justice. It appears from King’s affidavit that the plaintiff delivered it to him when he issued the process, but-took it off again and kept it, and, so far as the record shows, has it yet. It has not yet been filed dr lodged in any court.

We will reverse the judgment and dismiss the cause.

All concur: