97 Mo. App. 491 | Mo. Ct. App. | 1903
— Plaintiff begun an action of unlawful detainer before a justice of the peace. On the day set for trial the parties appeared and defendants filed an application for change of venue on account of the prejudice of the justice. This application was overruled. Defendants thereupon asked a continuance grounded on the statement that they had expected the venue to be changed. The continuance was refused and the trial was proceeded with, the defendants taking part therein. No further reference to the application for change of venue was made by either of the parties. Judgment was rendered for plaintiff and defendants appealed to the circuit court. The cause coming up in the latter court a day was agreed upon for trial. At the beginning of the trial the defendants objected to the introduction of any evidence by plaintiff on the ground that the court had no jurisdiction. . The objection was overruled, and the trial proceeded to judgment for plaintiff, the defendants participating therein. They then duly appealed to this court.
Since the circuit court could only obtain jurisdiction through the justice of the peace, the question presented is, had the justice jurisdiction of the cause? The statute relating to changes of venue is that they must be granted on affidavit for certain enumerated causes; and by an amendment it reads, “that when such affidavit for a change of venue shall be filéd, the justice shall have
A proper application for removal of a cause from a State to a Federal court ousts the former court of jurisdiction and renders any further acts of that court coram non judice. Yet the Supreme Court of this State, and the Federal courts, hold that taking part in the trial after a refusal to order the removal by the trial court is not a waiver. Herryford v. Insurance Co., 42 Mo. 149; Stanley v. Railroad, 62 Mo. 508; Railroad v. Ford, 35 Fed. Rep. 170.
It appears that a writ for the possession of the premises was issued in plaintiff’s behalf, returnable to the next term of the trial court, though it does not appear whether it has been executed. It is one of the powers of an appellate tribunal invested with authority to reverse, annul or revise judgments, to restore parties to the status quo before the judgment. They may, therefore, and should, on application to that effect, render judgment for the restitution of the property. 18 Ency. Plead, and Prac., 889, and authorities there collected.
It is no objection to an order 'of restitution that the court trying the cause had no jurisdiction. The court, in common justice, should, and does retain the power to undo what it wrongfully did, i. e., by restoring the parties to their situation before the wrongful interference. Northwestern Fuel Co. v. Brock, 139 U. S. 216.
The judgment of the trial court will therefore be reversed and judgment' entered here that defendants have restitution of the premises and for all costs by them expended; including $20.40 for printing abstract.