45 Mo. App. 551 | Mo. Ct. App. | 1891
— This is an .application for a writ of prohibition to be directed to A. W. Allen, a justice of the peace of Jackson county. In 1888 the Warder Grand Opera-House Company leased its opera house in Kansas City to Lester M. Crawford, for a term of five years, expiring in 1893. The relator by mesne conveyances acquired title to the property in August, 1890, and in March, 1891, instituted its suit before the respondent, a justice of the peace, for possession of the leased premises, therein claiming and alleging that “there is due and unpaid” seven months’ rent, aggregating $4,088.33, and it says that said rent “has become due and payable, and remains due to plaintiff, and wholly unpaid.” The petitioner, in its application to this court, set out at length its complaint before respondent, embracing copies of the lease under which Crawford holds, and the supplement thereto. At a hearing before respondent, a jury was called at Crawford’s instance, and against relator’s ' objection. The jury failed to agree and were discharged by the justice. Before a second hearing was reached, the relator petitioned this court to issue its writ of prohibition to prevent the respondent from again submitting the issues to a jury, as he intended to do. Respondent makes the following return:
“Now comes said respondent, and, waiving the issue of a provisional order in this cause, makes this his return herein as though such order had been issued, and
Upon these facts three principal questions arise: First. Has this court the authority to. issue the writ of prohibition to a justice of the peace \ Second. If it has, then is this a proper case for the exercise of such authority \ Third. Has Mr. Crawford, as the defendant in the main case, the right to demand a trial by jury \
The constitution, as it relates to the jurisdiction of the courts of appeals, has been recently construed by the supreme court in keeping with its evident meaning. That construction is that: “Its (court of appeals) original as well as appellate jurisdiction is confined to those cases, the subject-matter of which is not within the appellate jurisdiction of this court.” State ex rel. Blakemore v. Rombauer, 101 Mo. 499. This application seeks to invoke the original jurisdiction of the court, and, in order to determine whether we have jurisdiction to issue the writ, it is necessary to ascertain whether the supreme court or this court has appellate jurisdiction of the cause pending before Justice Allen. It is clear to us that the appellate jurisdiction is in this court. By
Section 6393 provides for the service of summons. Section 6394 provides: “ Upon the return of the summons executed, the justice shall proceed to hear the cause ; and if it shall appear that the rent which is due has been demanded of the tenant, lessee or person occupying the property, and that payment has not been made, and if tbe payment of such rent, with all costs, shall not be tendered before the justice, on the hearing of said cause, the justice shall render judgment that the landlord recover the possession of the premises so rented or leased, and also his debt for the amount of the rent then due, with all costs; provided, that the amount of the rent shall not'exceed the jurisdiction of a justice of the peace; and shall issue an execution upon such judgment, commanding the constable to put the landlord into immediate possession of the property leased or rented, and to make the debt and costs of the goods and cháttels of the defendant; upon which execution the constable shall deliver possession of the property to the landlord within five days from the time of receiving the said execution and he shall proceed upon the said execution to collect the debt and costs, and return the writ, as in case of other executions issued by a justice of the peace; and provided, further, that, if the plaintiff so elect, he may sue for possession alone, without asking for a payment for the rent due.”
Now in this case, relator (plaintiff in'original action) might have asked the enforcement of two rights. In one action, he might have asked judgment for the possession and for the rent due; but he elects not to ask for the recovery of rent and confines his case merely for the possession of the premises. No money demanded is in litigation. The averment in the complaint filed with the justice is that $4,035.33£ in rent is
The foregoing suggests itself to us in considering the briefs of respondent’s counsel. But the position which they take is that, since the constitution (section 12, article 6, in connection with section 4 of the amendment) gives this court “superintending control over all inferior courts of record,” we have no jurisdiction to direct the writ to a justice of the peace, whose court is not a court of record. We do not agree to this. The full provision of the constitution shows the position to be untenable.
There can be no doubt that the first clause of the constitution above quoted expressly confers jurisdiction without qualification or limitation on the courts of appeal to hear, issue and determine the common-law writ of prohibition. Such jurisdiction, therefore, exists in this court unless it is taken away in a subsequent part of the section. To take it away, the language must be expressly certain; it cannot be by implication. Commonwealth v. Ralph, 111 Pa. St. 365, 379. The construction of the constitution in this respect may be said to be analogous to the construction of written instruments affecting estates wherein an estate granted in one part is sought to be destroyed or taken away in an after part. In reference to the latter instrument we quote the strong and comprehensive language of the lord chancellor in Thornhill v. Hall, 2 Clark & Pin. 22 : “ I hold it to be a rule that admits of no exception, in the construction of written instruments, that, where one interest is given, where one estate is conveyed, where one benefit is bestowed in one part of an instrument by terms clear, unambiguous, liable to no doubt, clouded by no obscurity, by terms upon which, if they stood alone, no man breathing, be he lawyer or be he layman, could entertain a doubt, in order to reverse that opinion, to which the terms would of themselves and standing alone have led, it is not sufficient that you should raise a mist; it is not sufficient that you should create a doubt; it is not sufficient that you should show a possibility ; it is not even sufficient that you should deal in probabilities, but you must show something in another part of that instrument which is as decisive the one way as the other terms were decisive the other way; and
II. Respondent insists that, though we have jurisdiction, we should not entertain the application, and the writ should not issue as the relator has an adequate remedy by appeal. We rule the point against respondent. While it is true that special provision is made in the landlord and tenant act for an appeal, the trial on such an appeal is a trial de nozo, and affords no redress of the wrong done relator. It is true that he may obtain, ultimately, the object of his suit, but if he has a right to have his cause tried by the justice and the justice determines not to try the cause himself but, instead, to submit it to a jury, relator is quite effectively deprived of such right, and so completely is he deprived that he cannot have the wrong thus committed redressed ; for in no event can the result of the appeal restore him to the right to his summary remedy at the hands of the justice of the peace. The law gives the landlord a quick remedy, and if, in its wisdom, it has declared that such remedy shall be had by trial before a justice, and not a jury, and this is denied, an appeal does not obtain it, and the redress must lie in the extraordinary.process of the courts. We held in a matter analogous to this that mandamus was the proper process to compel a j astice of the peace to grant a change of venue. State ex rel. v. Clayton, 34 Mo. App. 563, a case where the argument of adequate remedy by appeal was interposed. If the statute gives the relator the right which he asserts, and imposes upon the justice of the peace the duty to try the cause, he does not merely erroneously decide a question over which he has jurisdiction. He does not merely commit an error in the proceedings, but he absolutely abdicates his official functions. He has no voice or control of the result. The verdict of the jury would be absolute and beyond his 'control. If no
' It is, however, further suggested under the foregoing contention that the defendant in the cause pending before the justice is solvent, and that, as the rent can be collected from him by the ordinary process of law,' the writ asked for should be withheld. We are conversant with the rule denying prohibition when the grievance can be redressed by ordinary proceedings. But such rule is not applicable to a case like the one in hand. Here we have a case for which the law has prescribed a remedy, and which it is alleged the justice refuses to grant. Respondent’s argument, in this respect, could, with equal propriety or force, be urged against granting mandamus in a cause where the justice should refuse to proceed at all with the landlord’s complaint.
III. We come now to one of the principal points discussed: Does the statute of landlord and tenant ox-other statutes, construed with the constitution, authorize a jux-y trial'in the possessory action therein provided for? We ai’e clear that it does not. In coux-ts of the class to which justices of the peace belong, and which do not exercise jurisdiction according to the eoux-se of the common law, it is safe to say that a jury ■will not be authorized for the trial of causes, unless it is required by legislative enactment. In summary proceedings, in such coux-ts, there is no doubt in our minds that, unless the intention to provide a jury for the trial of such causes is gleaned from the statutes, none can be had. Gear’s Lan. & Ten., sec. 199. The jury, as known to the common law, is not a part of the legal machinery of a justice of the peace, unless made so by statute. Vaughn v. Soade, 30 Mo. 600. The legislature may provide for the trial of the causes in such courts
But it is urged with much plausible force that the present constitution of this state has made material alterations in the jury law. The constitution as it was and as it- is, we here set out; the italics showing the changes made : “ That the right of trial by jury shall remain inviolate.” Const. Mo. 1820, art. 13, sec. 8; same in Const. 1865, art. 1, sec. 12. “The right of trial by jury, as heretofore enjoined, shall remain inviolate ; but a jury for the trial of criminal or civil cases in courts not of record may consist of less than twelve men, as may be prescribed bylaw." Const. 1875, art. 2, sec. 28. Respondent insists that while formerly the provision did not apply to inferior courts not of record, and not proceeding according to the course of the common law, yet that the additional clause incorporated in the new constitution makes it now obligatory to call a jury in such courts in all cases when demanded. In other words, that the right of trial by jury is now guaranteed in such cases. It cannot be well claimed that the present constitution does more than recognize the fact that in courts not of record juries are generally provided for by statute law; that being true, express authority is given to cómpose them of less number than the common-law jury of twelve men. To say that the constitution above quoted has declared that there shall be a jury trial in all inferior courts not of record, including justices of the peace and police courts of cities, and that the legislative acts and charters and ordinances which do not provide for juries are unconstitutional, is a mere assertion; there can be no question involved in such statement.
But if we should concede that the case now pending before the justice belongs to the class of “ civil cases in courts not of record,” as contemplated by the constitution, a matter we need not combat or approve, the
We think the respondent should try the cause without a jury, and we shall, therefore, award the writ of prohibition as prayed.