Seeser v. Southwick

66 Mo. App. 667 | Mo. Ct. App. | 1896

Gill, J.

This case originated before a justice of the peace; was taken by appeal to the circuit court, where on a trial there was judgment for plaintiff and defendants appealed.

The decisive question is, did the justice have jurisdiction of the subject-matter of the action. This is to. be determined from the face of the complaint filed with the justice. In this it is stated, in substance, that plaintiff made a deed of trust, covering a certain lot in Kansas City, to defendant, P. E. Southwick, to secure •a debt he was owing the other defendant, L. Y. South-wick; that thereafter plaintiff paid the debt in full; but that notwithstanding such payment, the trustee,* at the request of the beneficiary, sold the property and one Rider became the purchaser; that in order to redeem the lot from such illegal sale, and the cloud placed on the title thereof, the plaintiff was compelled to and did pay Rider the sum of $157.90. It is further. alleged (and embodied in the same statement, without pretense •of stating a separate cause of action) that the defendant trustee received from the sale of the lot to Rider the sum of $100; that said trustee then gave credit on plaintiff’s note for $35, a pretended balance due, but had not accounted to plaintiff for the balance. The .statement then winds up with a prayer for judgment for the $65, the balance in defendant’s hands belonging to the plaintiff, together with a further sum of $92.90, 4'damages for said illegal acts of defendants,” etc.

I. The statute provides that “no justice of the peace shall have jurisdiction to hear or try any action where the title to any lands or tenements shall come in question and be in issue, nor of any strictly equitable proceedings. ” Sec. 6124, R. S. 1889. The right now to recover the amount which plaintiff paid to Rider to redeem, ^necessarily involves the question whether or not plaintiff had title to the lot, but which had been clouded by a colorable sale to Rider. If the sale by the trustee to Rider was valid and he thereby acquired title to the lot, then plaintiff’s subsequent purchase from Rider was merely voluntary and plaintiff would have no standing in court, for the recovery of the money .so paid. If, on the other hand, plaintiff had paid the •debt before the sale by the trustee, then the conveyance by the latter to Rider was unauthorized and transferred no title. Pease v. Pilot Knob Iron Co., 49 Mo. 124; McNair v. Picotte, 33 Mo. 57. The title then to the lot would necessarily “come in question and be in issue,” and tbe justice would have no jurisdiction of tbe subject-matter stated in the complaint. Bredwell v. Loan & Invest. Co., 76 Mo. 321.

Again, tbe right to recover from tbe defendant trustee would involve a concession of tbe legality of tbe sale to Rider, and would call on sucb trustee for an accounting. Tbis would be a strictly equitable proceeding, and of wbicb tbe justice could have no jurisdiction. So that in whatever light the action is viewed, under tbe allegations of tbe complaint filed with tbe justice, there was an absence of jurisdiction.

If the justice, then, bad no jurisdiction of the subject-matter of the action, nothing thereafter done by the defendants — sucb as appearance and trial without objection — could confer sucb jurisdiction. the rule invoked by plaintiff’s counsel applies only when the question is as to the jurisdiction over the person of the defendant; it has no application when the court assumes to bear and try a class of controversies over wbicb the statute has expressly denied it jurisdiction. And it is further well settled that if the justice of the peace was without jurisdiction, then the circuit court bad none; for its right to proceed and try the cause was derivative, not original.

This error is fatal, and one which, appearing on the face of the record proper, this court will correct, •even though no motion in arrest was made in the lower court. McIntire v. McIntire, 80 Mo. 470.

The judgment will be reversed.

All concur.