Rocheport Bank v. Doak

75 Mo. App. 332 | Mo. Ct. App. | 1898

Gill, J. —

This is a suit in attachment begun before a justice of the peace of Missouri township in Boone county. On the writ of attachment the constable made return that he had levied on certain personal property of the defendant found in Cedar township in said county and by reading the writ to the defendant in said Cedar township. It was not stated in the return that Cedar township adjoined Missouri township.

At the trial in the circuit court, where the case was taken by appeal, plaintiff had judgment sustaining the attachment and on the merits, and defendant appealed.

The sole question presented here is, whether or not the justice had jurisdiction of the subject-matter of the action — the defendant contending that the face of the proceedings did not affirmatively show jurisdiction in the justice, in that it does not there appear that the suit was brought before a justice o'f the township wherein the property attached was found, or in an adjoining township, or in the township where the defendant resided or in an adjoining township as required by section 6127, Revised Statutes 1889.

It is settled by an unbroken line .of decisions in this state that justices’ courts have only such jurisdiction as the statute expressly gives them, and that the facts giving such jurisdiction must affirmatively appear on the face of their procedings. Under the head of jurisdiction of justices of the peace, the statute (section 6127) provides that “every action by attachment shall be brought before a. justice of the township wherein the property credits or effects of the defendants, or either of them, may be found, or in any adjoining township thereto, or in the township wherein- the defendant resides, or in any adjoining township.”

The proceedings in this case clearly fail to show jurisdiction in the justice before whom this attachment suit was brought. It appears that the suit was brought before a justice of Missouri township in Boone county; that the property attached as well as the defendant, was found in Cedar township of said county; but fails to show that said Cedar to.wnship adjoins said Missouri township, or that the defendant resided in the township where the suit was brought or in an adjoining township. It must be held, then, that the justice had no jurisdiction of the case. State v. Metzger, 26 Mo. 65; Cooper v. Barker, 33 Mo. App. 181; Corrigan v. Morris, 43 Mo. App. 456; State ex rel. v. Co. Ct., 66 Mo. App. 96. And since the justice did not acquire jurisdiction, it is equally as well settled that the circuit court to which the case was appealed acquired none; the jurisdiction of such appellate court was only derivative.

Neither did defendant’s appearance to the action waive this objection to jurisdiction. While an appearance and going to trial may waive service of process, and jurisdiction over the person of the defendant may be thus obtained, yet such consent can not confer jurisdiction over the subject-matter of an action. This distinction has been repeatedly pointed out.

We can take no heed of the affidavit, or so-called amended return, filed for the first time in this court. Such paper is no part of the record. Besides “jurisdiction in cases like this may be said not to depend on the fact, but on such fact appearing in the proceedings.” Corrigan v. Morris, supra.

It seems, however, that the constable’s return might have been amended in the circuit court. Daniel v. Atkins, 66 Mo. App. 342. To afford an opportunity therefor we will reverse the judgment and remand the cause.

All concur.