482 S.W.2d 529 | Mo. Ct. App. | 1972
Lead Opinion
This case reaches us upon appeal from the ruling of the circuit court denying relator’s “Petition for Rule On the Magistrate.” Auto Finance Company was the judgment creditor of Arthur L. and Opal Brown. In aid of execution Auto Finance caused a garnishment to be issued from the magistrate court and served against Cerro Corporation. Cerro filed its “motion to quash service of summons and to dismiss garnishment proceedings.” This motion was based upon improper service of the garnishment upon Cerro. That motion was coupled with one requesting “Allowance of Compensation to Garnishee” which was a request for attorney’s fees.
On May 14, 1970, the motion to quash was heard and sustained by respondent magistrate. The allowance motion was passed until May 25. On May 21, Auto Finance filed its petition for rule on the magistrate directed to the magistrate’s action in quashing the service and dismissing the garnishment. The circuit court issued its order to show cause on the same date directing the respondent to certify the complete court file and ordering respondent to take no further action in the cause.
A rule on the magistrate is a proceeding to quash the record in magistrate court by writ of certiorari. It warrants the court in which the relief is sought to search the record to determine whether the lower tribunal has acted without jurisdiction. If it has the record must be quashed; if it has not the writ must be dissolved. State ex rel. Missouri Baptist Hospital v. Nangle, Mo.App., 230 S.W.2d 128 [1-5].
We turn first to the contention that the magistrate was without jurisdiction to quash the garnishment. Magistrate courts are courts of limited jurisdiction and they possess only the powers expressly granted them by law. No inference can be indulged to enlarge their jurisdiction. State v. Anderson, Mo., 413 S.W.2d 161 [2, 3], By constitutional provision their practice, procedure, administration and jurisdiction is as was formerly provided for justices of the peace until otherwise provided by law. Mo.Const. Art. V., Sec. 20, V.A.M.S. Justices of the peace possessed no jurisdiction to entertain motions to quash an execution. State ex rel. Modern Finance Co. v. Bledsoe, Mo.App., 426 S.W.2d 737 [11]. The Supreme Court, however, under its rule making power
Certiorari is not a substitute for appeal and it reaches only to jurisdiction. State ex rel. Missouri Baptist Hospital v. Nangle, supra, [1-5]. The action of the magistrate court in sustaining the garnishee’s motion to quash and dismiss was final and appealable. Flynn v. First National Safe Deposit Company, Mo., 284 S.W.2d 593 [4—7]. The magistrate court had the jurisdiction to make the ruling and if the ruling was erroneous it could be corrected on appeal. We therefore need not consider or discuss the asserted reasons why the magistrate quashed the garnishment.
The allowance of attorney’s fees presents a different problem. Chapter 525 RSMo 1969, V.A.M.S., which governs garnishments, is divided into two parts. The first, containing §§ 525.010 through 525.310 relates to garnishments generally. The second, containing §§ 525.320 through 525.-480, deals specifically with garnishments in magistrate courts. In the first part there is provision for recovery by the garnishee from the plaintiff of a “sum sufficient to indemnify him for his time and expenses,
The two motions presented to the magistrate court and sustained by it sought different relief and were treated separately by the magistrate court. The rule sought from the circuit court was in two courts, each directed at a separate portion of the magistrate court record. The action of the trial court in refusing to quash that portion of the magistrate court record sustaining garnishee’s “Motion to Quash Service of Summons and to Dismiss Garnishment Proceedings” was correct and is affirmed. The action of the trial court in refusing to quash that portion of the magistrate court record granting garnishee’s “Petition for Allowance of Compensation to Garnishee” was erroneous and is reversed. The cause is remanded with directions to enter a judgment quashing that portion of the magistrate court record.
PER CURIAM:
The foregoing opinion by Smith, J., a commissioner when the case was submitted to the court, is adopted as the opinion of this court. Accordingly, the action of the trial court in refusing to quash that portion of the magistrate court record sustaining garnishee’s “Motion to Quash Service of Summons and to Dismiss Garnishment Proceedings” is affirmed. The action of the trial court in refusing to quash that portion of the magistrate court record granting garnishee’s “Petition for Allowance of Compensation to Garnishee” was erroneous and is reversed. The cause is remanded with directions to enter a judgment quashing that portion of the magistrate court record.
. Mo.Const. Art. V., Sec. 5.
. The dissent cites State v. Anderson, supra, as contrary to this holding. Anderson involved an addition of substantive jurisdiction by Rule, clearly prohibited by Art. Y Sec. V, Mo.Const. Rule 76.60 is an expansion of procedural jurisdiction. Magistrate Courts have substantive jurisdiction over garnishments by statute. The procedure they must follow may be regulated by rule under Art. V, Sec. V, Mo. Const.
Dissenting Opinion
(dissenting).
I respectfully dissent from that portion of the majority opinion which holds the magistrate court has jurisdiction to quash the garnishment here involved.
Justice of the peace courts — the predecessors of magistrate courts — were of limited competency and clearly possessed no jurisdiction to entertain a motion to quash an execution. Brownfield v. Thompson, 96 Mo.App. 340, 70 S.W. 378; Carr v. Pennsylvania R. Co., 108 Mo.App. 388, 83 S.W. 981. In State ex rel. and to Use of Berra
When magistrate courts were created by the Constitution of 1945, it was provided in Article V, Section 20: “Until otherwise provided by law consistent with this constitution, the practice, procedure, administration and jurisdiction of magistrate courts, and appeals therefrom, shall be as now provided by law for justices of the peace; * * * ” (Emphasis supplied.) Thus it has been held that: “Magistrate courts are inferior courts of limited jurisdiction possessing only those powers which are expressly granted by statute. * * * No presumptions or inferences will be invoked to enlarge their jurisdiction and they cannot assume or take powers by implication.” (Emphasis supplied.) Bauer v. Rutter, Mo.App., 256 S.W.2d 294, 295. Also quoted in State ex rel. Inland Finance Corp. v. Felder, Mo.App., 370 S.W.2d 696, 697.
The majority opinion relies upon Rule 76.60, V.A.M.R. to reach the result that magistrate courts have jurisdiction never possessed by justice of the peace courts. It is true that Rule 76.60 speaks of “any judge or magistrate” in the first part of the rule; however, at the end thereof, when granting authority to hear such matters, the rule speaks only of “such judge”. It is further to be noted that the statute (§ 513.360, RSMo, V.A.M.S.) nowhere contains the word “magistrate”. It refers only to a “judge”. The purpose of the rule was obviously to carry out the provisions of the statute. That being so, a wording different from that of the statute cannot, in my opinion, constitute a sound basis for an enlargement of magistrate court jurisdiction.
The majority opinion cites State v. Anderson, Mo., 413 S.W.2d 161 [2,3], That case is diametrically opposed to the result reached in the majority opinion. It is in fact the strongest authority for this writer’s dissent. Anderson involved the question whether the magistrate court had jurisdiction not only to record the default but also to enter the judgment against the surety for defendants charged with felonies. All the principles recited above dealing with the limited nature of magistrate court jurisdiction were restated in Anderson. The case is particularly pertinent in that at 1. c. 163[5] the court dealt with the argument here advanced; i.e., that by rule the jurisdiction of the magistrate court can be changed. It was there argued that Rule 32.12, V.A.M.R. was sufficient to confer jurisdiction upon the magistrate court to enter the judgment of forfeiture just as it is here contended Rule 76.60 confers jurisdiction upon the magistrate court to quash garnishments. In both cases the court did not have such jurisdiction under the Constitution or by statute. The opinion holds : “ * * * That rule does appear to authorize the court in which the default occurs to enter judgment upon the security given for the appearance of the defendant. However, that rule cannot enlarge the jurisdiction of the magistrate court, which must depend upon legislative enactment. § 20, Art. V, Const, of Mo. 1945, V.A.M.S.” (Emphasis supplied.) In Anderson the Supreme Court interpreted the language “[ujntil otherwise provided by law” found in § 20, Art. V to mean legislative enactment, not Supreme Court rule. That case is binding upon this court. It follows that the magistrate court has no jurisdiction to quash an execution.
Since I deem the majority opinion and the opinion of this court in State ex rel. Modern Finance Co. v. Bledsoe, Mo.App., 426 S.W.2d 737, to be in conflict with the opinion of the Supreme Court in State v.
