84 Mo. App. 275 | Mo. Ct. App. | 1900
By agreement of parties the venue of the cause was changed from the Stoddard Circuit Court to the Cape Girardeau Court of Common Pleas. Section 19 of the act establishing the Cape Girardeau Court of Common Pleas (vol. 2, page 2582, R. S. 1899), provides that “all causes in which a change of venue shall be awarded by the circuit court of any other county to the county of Cape Girardeau shall be certified and transferred to the circuit court as heretofore.” The award of the venue of the cause to the common pleas court was in violation of this section, and for this reason it is insisted that, that court did not acquire jurisdiction to hear and determine the cause. It is obvious that it was beyond the power of the Stoddard Circuit Court of its own volition to have awarded the change to the common pleas court, but the award was by the consent of the parties, and if it is within the power of parties to give a court jurisdiction by consent and by voluntarily appearing and submitting the issues made by their pleas to a court for trial, without objection, then the common pleas court acquired jurisdiction to hear and determine the cause. It is well-settled law that jurisdiction of the subject-matter can not be conferred by consent of parties. Stone v. Corbett, 20 Mo. 350; Dodson v. Scroggs, 47 Mo. 285; Abernathy v. Moore, 83 Mo. 65; State v. Bulling, 100 Mo. 87; Giesping v. Scho
Suit by attachment, on the ground that defendant had fraudulently conveyed his property, so as to hinder and delay his creditors. Verdict and judgment for defendant on plea in abatement. The account sued on not being due when the suit was brought, there was judgment on the merits also for defendant.
The evidence is that defendant and one Erancis bought on time payments a stock of hardware and groceries in July,' 1894, of O. O. Eield, the surviving partner of Eield & Oom-, pany, for which they agreed to pay $1,580. Notes and a chattel mortgage on the entire stock were given to Eield to se
On the part of defendant the evidence tends to prove that both mortgages were given in good faith on the part of both defendant and Field, and that there was no agreement or understanding between Field and defendant that defendant might dispose of the goods in the ordinary course of
The contention of appellant is that the court erred by giving the following instruction of its own motion, to wit:
“You are instructed that although you may believe and find from the evidence that the defendant T. A. Riddle, executed a chattel mortgage on the twenty-third day of March, 1895, to one O. O. Fields .conveying the property levied upon by virtue of the writ- of attachment herein and that said mortgage is and was regular upon its face yet if you further believe and find from the evidence that at the date of the execution of said mortgage or at any time since said date there was an understanding or agreement between the parties to said mortgage by which the mortgagor, the defendant herein, was authorized to sell the property, covered by said mortgage and apply the proceeds thereof to the payment of debts other than that mentioned in said mortgage (and that said O. O. Fields had knowledge thereof and permitted the same to be done), then you will find that said mortgage is void as a matter of fact and your verdict will be for plaintiff.”
This instruction is somewhat involved. It is difficult to understand just what it means, as it speaks of an agreement or understanding between defendant and Fields, and then tells the jury that if Fields had knowledge of the agreement, etc. If Fields made the agreement, he certainly knew of it. If the instruction meant to tell the jury that if the agreement was-made and was carried out by defendant and that Field had knowledge and permitted him to sell mortgaged goods and apply the proceeds to the payment of debts and the pur
The plaintiff also complains of the following instruction, to wit:
“The court instructs the jury that a debtor may secure one creditor in preference to another or others, but in so doing he may not convey more property than is actually necessary to secure such debt, and if you find from the evidence that the value of the property conveyed by defendant herein to secure the debt due from him to C. O. Fields was more than was necessary to secure said debt and was for the purpose of hindering or delaying defendant’s creditors, then you will find that such conveyance was fraudulent and your verdict will be for plaintiff.”
The judgment is reversed and the cause remanded to the Cape Girardeau Court of Common Pleas for retrial.