State ex rel. South St. Joseph Town Co. v. Mosman, 112 Mo. App. 540

State ex rel. South St. Joseph Town Co. v. Mosman

112 Mo. App. 540 | Mo. Ct. App. | 1905

JOHNSON, J.

This is an original proceeding for a writ of mandamus to compel the respondent, a judge of the circuit court of Buchanan county, to reinstate upon his docket and to hear and determine a cause dismissed by him. An alternative writ was issued by one of the judges of this court and the case is before us upon the issues presented by this writ and respondent’s demurrer thereto.

The facts are as follows: On June 3, 1904, the relator brought an action against Charles Scott, as its tenant, for possession of the rented premises situated in the city of St. Joseph and to recover judgment for unpaid rent amounting to $262.50 which had accrued previously at the rate of $25 per month. The suit was begun before John Flournoy, a justice of the peace within and for Washington township in said county. Defendant, duly served with process, appeared and upon his application a change of venue was awarded and the cause sent to Joseph N. Walker, another justice in *545the same township. An answer was then filed by defendant, and nnder the claim that the facts therein alleg'ed presented an issue involving the title to the real estate, the cause was certified by the justice to the circuit court; but, afterwards, was remanded upon the finding that such title was not in issue and that jurisdiction was vested in the justice to try the issues joined. When the cause came on for trial defendant failed to appear and judgment was entered in favor of plaintiff in the sum of $312, the amount of rent then delinquent, and for restitution of the premises. From this judgment defendant appealed to the circuit court, giving the statutory bond. In the circuit court he filed a motion to dismiss the cause which, among others, contained the ground that the money judgment rendered by the justice being for a greater sum than three hundred dollars was in excess of jurisdiction. Upon consideration of this motion the court entered a final judgment dismissing the case and caused his action to be set out in the record as follows: “ . said motion coming on to be heard, the same was taken up and considered and the same was overruled as to all of the grounds therein stated except that the judgment was void because for an amount in excess of the jurisdiction of a justice of the peace.”

There is no charge of waste nor irreparable damage, nor of insolvency of defendant, but this proceeding is based upon the theory that nnder the landlord and tenant law, relator is entitled to a speedy trial, and as the trial court refused to take cognizance of a cause falling within its jurisdiction, the remedy of appeal is insufficient to meet the exigencies of the case.

Respondent in his demurrer attacks relator’s right to relief upon the following points: First, the judgment rendered by the justice is void, being in ex;cess of jurisdiction ; and as the power of the circuit court in appealed cases is derivative, an appeal from a void judgment *546will not confer jurisdiction. Second, the court in which the suit originated was not legally constituted and, therefore, jurisdiction over the cause at no time was obtained. Third, the relator has a perfect remedy by appeal, and is not entitled to extraordinary relief.

It is suggested that respondent in interposing the second defense is overstepping the limits of judicial propriety because the point therein made was not considered by him in his ruling upon the motion to dismiss, and his action in urging it here savors of partisanship and indicates a purpose to defeat relator’s rights, rather than a desire to aid in the accomplishment of justice in a controversy in which his sole interest is that of a judicial- officer. We do not think respondent’s conduct deserves animadversion in such respect. On the other hand, as we are being called upon to issue a peremptory mandate to correct a claimed abuse of power, it is respondent’s duty to apprise us of any lawful reason for withholding the application of the extraordinary remedy sought. We could not act advisedly in cases of this character if a respondent because of his office should be held bound by rules of ethics to abstain from presenting legitimate defenses.

In dismissing the cause for lack of jurisdiction, respondent acted under the assumption that the excess in the money recovery allowed by the justice infected' with invalidity the judgment in its entirety and that the authority of the circuit court, as an appellate tribunal, being derivative, originates in the judgment rendered by the inferior court; from which preanise follows the deduction that a judgment void for exceeding the limits of the original jurisdiction is inoperative for any purpose and cannot furnish a basis lor action upon appeal. We will adopt for argument, without so deciding respondent’s view, that the judgment of the justice was void; but we cannot follow the process of reasoning that resulted in the action taken. It is the rule — gen*547erally recognized — that with respect to actions originating in inferior courts an appeal will lie from a void judgment. [Smith v. Jacobs, 77 Mo. App. 254; State v. Geiger, 45 Mo. App. 111.] In such cases the jurisdiction of the circuit court is derived not from the character of the judgment rendered, but from the initial authority conferred upon the inferior court to hear and determine the cause. [Walter v. Gilleland, 98 Mo. App. 584; Simpson v. Watson, 15 Mo. App. 431.] The law requires the circuit court to hear the cause anew, not to act as a reviewing tribunal. The appeal vacates the judgment and reverts the parties to the position they occupied when jurisdiction over the subject-matter and parties was first obtained. [R. S. 1899, section 4071; Carroll v. Hancock, 57 Mo. App. 228; Holzhour v. Meer, 59 Mo. 434; Sublette v. Railway, 96 Mo. App. 121.]

Therefore, the authority of the circuit court is not based upon the judgment rendered by the inferior court, nor upon any of its judicial acts, but is derived from the power it possessed to hear and determine the issues presented. When, as in the case before us, the subject matter of the demand sued upon is one falling under the cognizance of the justice, and the parties are legally brought into court, the jurisdiction to proceed to final judgment is complete, and upon appeal passes to the circuit court unimpaired by the acts of the inferior court. [Dowdy v. Wamble, 110 Mo. 280; Babb v. Bruere, 23 Mo. App. 604; Batchelor v. Bess, 22 Mo. 402.] The case of Williams v. Monroe, 125 Mo. 574, much relied upon by respondent, in no manner militates against this view. In that case, it will be noted the defendants were hot brought into court in the manner provided by law; and in the opinion the Supreme Court said, “we are not dealing with a defective execution of a lawful authority but with a proceeding unauthorized by law.” Here, we are dealing with a proceeding authorized by law, for the justice had full power to render a lawful judgment. And in *548the case of Windsor v. McVeigh, 93 U. S. 274, cited with approval in Williams v. Monroe, supra, the defendant was not made a party within the meaning of the law. He was served with notice and appeared, but was denied the right to be heard because of his rebellion against the authority of the Federal government. The court said: “The legal effect of striking out his appearance was to recall the monition and notice as to him.” And the judgment was held to be void as rendered against a defendant who had not his day in court. We freely concede the soundness of the doctrine enunciated in these two cases; and here, if it appeared that the defendant had not been brought into court or-had been denied a hearing, or that the justice had no jurisdiction of the subject-matter of the action, we would not hesitate to say that the jurisdiction derived by the circuit court was confined to the power to dismiss the cause. Neither reason nor authority justifies turning out of court a plaintiff who has properly brought his suit upon the ground that the justice in the progress of the case has exceeded his jurisdiction. The learned trial judge erred in dismissing the case without affording a hearing upon the merits.

Respondent’s contention that no legally constituted office of justice of the peace is shown to exist by the record is based upon his construction of section 3805, E. S. It appears that the action was commenced before John A. Flournoy, “a duly qualified and acting justice of the peace in and for Washington township, Buchanan county, Missouri; ” and while it is true, the record here must show affirmatively the jurisdiction of the inferior court (Allen v. Scharringhausen, 8 Mo. App. 229; Gideon v. Hughes, 21 Mo. App. 528; Olin v. Zeigler, 46 Mo. App. 193) such requirement is satisfied by the record recital above noted. [Duke v. Railway Co., 39 Mo. App. 105; Kinion v. Railway Co., 39 Mo. App. 387.]

But respondent insists that under the provisions of section 3805, Washington township, including as it does *549a city of more than one hundred thousand inhabitants, should have been divided into districts by the county court, each one comprising the territorial jurisdiction of a justice of the peace. It is conceded that such action has not been taken, and that each of the justices of the peace in Washing-ton township has been elected to exercise jurisdiction within the township. It also is conceded that the city of St. Joseph, situated within that township, contains, according to the census of 1900, more than one hundred thousand inhabitants, and that in the year 1890 it contained far less than that number.

The determination of one question disposes of this branch of the case. An analysis of the language of the statute leaves no room for doubt that it was the purpose of the Legislature to confine the operation of the provisions relating to townships containing a city of more than one hundred thousand inhabitants to such as existed on the first day of March, 1890, and not to those falling within that class thereafter. The word “hereafter” used in the statute, upon which so much stress is laid by respondent, obviously refers to townships which might grow into the class between the date of the enactment and March 1, 1890. The situation which obtained at the latter date evidently was intended to 'be taken as a fixed condition. Under this view, we must hold that the office of justice of the peace within and for Washington township is legally constituted.

But we are of the opinion that the extraordinary remedy here invoked should be denied, for the reason that relator has an adequate — in fact, an exclusive remedy — under ordinary procedure. Eelator assumes a false premise in the conclusion that respondent has refused to entertain any jurisdiction over the appealed case. To the contrary, respondent did assume authority to dispose of it, heard the motion to dismiss, acted upon it, and entered a final judgment from which an appeal could have been prosecuted. Nowhere did he overstep *550the bounds of his jurisdiction, and all of his acts were judicial in their character. Relator confounds his case with that class wherein the trial judge wrongfully refuses to entertain any jurisdiction, or to make a final order from which appeal will lie. But no authority has been brought to our attention sustaining the view that when a trial judge has entered a final judgment, not in excess of jurisdiction but as a result of a mistaken idea that he is without authority to proceed further, the appellate court should employ remedial process to correct his error. Whenever the actions of the trial court are found to be within the scope of lawful authority, and to be such as are denominated judicial, error must be remedied through the usual procedure. The opposite practice would be inimical to the orderly administration of justice, and would serve to lessen respect for the courts. Corrective actions brought against judicial officers involve the idea of transgression and should not be resorted to for the sole purpose of obtaining a speedy hearing nor for the correction of mere errors. Judicial excesses, devoid of adequate legal remedy, alone would justify the application of the remedy here sought.

The peremptory writ is denied.

All concur.