55 Mo. App. 312 | Mo. Ct. App. | 1893
Lead Opinion
This was an action by attachment commenced by the plaintiff against the defendant and one Smith before a justice of the peace to recover damages for injuries to the plaintiff’s crops.
The action was dismissed before the justice as to Smith. The remaining defendant filed no plea in abatement. There was a trial on the merits which resulted in judgment for the plaintiff, and from which defendant appealed to the circuit court, where the defendant was permitted to file a plea in abatement. A trial was had before the court on both the plea in abatement and the merits, which resulted in a judgment for the defendant on the issue made by the plea in abatement, and in favor of the plaintiff on the merits, for the sum of $130, and from which latter judgment the defendant took an appeal here.
The defendant has assigned several grounds for the reversal of the judgment. The first which we shall notice is, that the circuit court obtained no jurisdiction of the. subject-matter of the cause by appeal from the justice for the reason that the, affidavit for the appeal fails to show whether the appeal is from the merits or the judgment taxing costs. Revised Statutes, sec. 6330. Conceding that the affidavit is. defective in the particulars indicated, still we must think the objection to the jurisdiction not well taken. The circuit court, it may be assumed, had concurrent original jurisdiction with the justice of the peace over the subject-matter of the action. Revised Statutes, sec. 3318. The ■record shows that the justice by an entry on his docket granted the appeal and thereafter filed in the office of the clerk of the circuit court a transcript of his docket entries together with all other papers relating to the
The case is not different than if the complaint had been originally filed in the circuit court and the defendant had voluntarily appeared thereto and proceeded to trial without the previous service of notice or process. After judgment he could not be heard to controvert the jurisdiction of the court. Sampson v. Thompson, decided at the present term. Page v. Railroad, 61 Mo. 78; Bohn v. Devlin, 28 Mo. 319; Orear v. Clough, 52 Mo. 55, 118; Griffen v. VanMeeter, 53 Mo. 430; Peters v. Railroad, 59 Mo. 406; Kronski v. Railroad, 77 Mo. 362; Bates v. Scott Bros., 26 Mo. App. 428; Pry v. Railroad, 73 Mo. 127; Griffin v. Samual, 6 Mo. 52; McQuillan’s- Pleading and Practice, sec. 331. The jurisdictional point must be ruled against defendant.
It is always proper for the trial court to permit the reopening of plaintiff’s or defendant’s evidence when once closed, if the ends of justice at the time appear to require it (Taylor v. Cayce, 97 Mo. 243); and so it is not perceived that the action of the trial court complained of in this regard was improper.
As to the objection that the plaintiff should not have been permitted to prove the actual possession or ownership of the land upon which the trespass was committed because it had not been alleged in the statement of his cause of action, it is sufficient to say that no such objection was taken at the trial and made the
The case was tried by the court without the intervention of a jury. No instructions were asked or given. And, as there seems to have been some substantial evidence to support the judgment, we must presume the trial court entertained a correct view' of the law, and so we cannot disturb its judgment.
The plaintiff in his brief insists that the judgment for. the defendant on the plea in abatement should be reversed for certain reasons therein mentioned. But as no exceptions were taken and preserved to the rulings of the court in respect to the disposition of any matter pertaining to that branch of the case, there is nothing before us for review.
It results that the judgment of the circuit court will be affirmed.
Rehearing
ON MOTION POE BEHEAEING-.
After we have given due consideration to every point of objection urged against the judgment by defendant, either in his oral argument or printed brief, and have ruled upon the same adversely to him he now by his motion for the first time suggests that the justice had no jurisdiction of “the subject matter of the suit” for the reason, first, there was no affidavit filed in said suit before the justice upon which the attachment was issued; and, second, that the action was founded oh a demand for unliquidated damages, ft.is a sufficient answer to the first of these objections to say that the abstract of the record discloses that this entry appeared in the justice’s transcript, viz:
*319 “The above petition was filed with the justice, December 7, 1892; summons issued, returnable on the twenty-fourth day of December, 1892, and on the fourth day of December, 1892, affidavit and bond filed with the justice, and an attachment writ was issued, returnable on the twenty-fourth day of December, 1892. December 24, plaintiff dismissed his cause of action on the merits against defendant, Q-. O. Smith, and, no plea in abatement being filed in behalf of the other defendant, F. L. Grillett, the cause proceeded to trial upon the merits, before a jury of six competent men. After hearing all the evidence and argument the jury returned into court the following verdict: ‘We, the jury, give plaintiff $65. J. L. Burroughs, Foreman.’”
Now the defendant has not seen proper to set forth in his abstract the affidavit filed before the justice of the peace; but in the counter-abstract of the plaintiff it appears that when the cause reached the circuit court the defendant then in pursuance of the leave granted him for ■ that purpose filed his plea in abatement wherein he denied “the truth of the facts alleged in the plaintiff’s affidavit for attachment herein” and further denied that “he is a nonresident of the state or that he is about to remove his property or effects out this state with intent to defraud, hinder or delay his creditors.” So that the contention that there was no affidavit filed before the justice to authorize the issue of the attachment process, must be held unfounded.
And, as to the other ground of objection, it may be stated that in the absence of statutory provision allowing attachments to issue in actions founded on tort that such actions will not lie. Drake on Attachment [6 Ed.], section 10. But the statute of this state furnishes the remedy in all civil actions whether resting on contract or sounding in tort. Revised Statutes, 1889, sec. 521; Revised Statutes, 1879, sec.
What was said by us by way of exposition of the language of section 521, Revised Statutes, in Houston v. Woolley, supra, need not be" repeated here. The conclusion there expressed was that the words “any civil action” as employed in that section were broad and comprehensive enough to embrace all actions at law whether resting on contract or sounding in tort. Entertaining these views, it results that the motion must be denied.
