Swezea v. Jenkins

186 Mo. App. 428 | Mo. Ct. App. | 1914

EARRING-TON, J.

— Plaintiff (defendant in error) commenced suit on a promissory note for $50 signed by defendants (plaintiffs in error) before a justice of the peace within and for Kelley township in Carter county. The summons was issued and placed in the hands of the constable of Kelley township for service. His return shows that he executed the writ by reading the same to and in the presence of the defendants “in Johnson township.” The transcript of the justice shows that defendants failed to appear for trial, and a judgment was entered against them for $50.51. An appeal to the circuit court of Carter county was perfected by defendants, and when the case was reached on the docket there, the defendants filed a motion to dismiss the plaintiff’s action because the justice “had no jurisdiction of the subject-matter” and because “the circuit court acquired no jurisdiction of the subject-matter on appeal.” The motion was overruled; whereupon the circuit court proceeded with the cause, its judgment being that the appeal be dismissed for want of prosecution and that plaintiff recover of and from the defendants the sum of $54.15. Defendants sued out a writ of error and have brought here for our consideration only the foregoing proceedings, and ask that we set aside the judgment of the circuit court on the record proper. The evidence was not preserved by bill of exceptions and brought here.

.The point made by plaintiffs in error is that the transcript filed in the circuit court does not show that the justice had jurisdiction of this cause. They direct our attention to the fact that neither the transcript of the justice nor the record entries in the circuit court show the residence of any of the parties; nor does the fact anywhere appear that Johnson township adjoins Kelley township. They insist that since the justice court is one of limited jurisdiction, its transcript must affirmatively show jurisdiction of the cause, and that if it does not, as the jurisdiction of the circuit court on appeal from the justice is derivative, the action should be dismissed.

Since the last decision of the Supreme Court (Meyer v. Insurance Co., 184 Mo. 481, 83 S. W. 479) holds that the taking of an appeal from a judgment by default in a justice’s court by a defendant to the circuit court does not operate as a waiver of the matter of defective service and confer jurisdiction over the person, the filing of the motion in the circuit court would not be an appearance except for the purpose therein stated. [Handlan-Buck Manufacturing Co. v. Railroad, 167 Mo. App. 683, 151 S. W. 171.]

Now the motion filed in the circuit court by defendants asking that plaintiff’s action be dismissed questions the jurisdiction of the justice over the “subject-matter,” saying nothing as to jurisdiction of the person. The circuit court, therefore, had sufficient ground for overruling the motion because the “subject-matter” of the suit was a promissory note for $50, over which the justice of course had jurisdiction; and this would be sufficient ground upon which to dispose of the writ of error. [State ex rel. Pacific Mut. L. Ins. Co. v. Grimm, 239 Mo. l. c. 177, 143 S. W. 483.]

The plaintiffs in error, however, are in no better shape to insist on the point here had their motion been directed to the jurisdiction as to the person. All the decisions evidence the general proposition that a justice court is one of limited jurisdiction, and, being such, the jurisdiction the justice assumes must somewhere, be shown- in his proceeding’s. Some confusion has arisen as to just where the jurisdictional facts must appear. It would seem that in all cases where the property which is the subject-matter of a suit brought before a justice of the peace fixes his jurisdiction, then the jurisdiction must be made to appear from some entry made by him in the case. [Sawyer v. Burris, 141 Mo. App. 108, 121 S. W. 321; State ex rel. Castleman v. Cunningham, 106 Mo. App. 58, 79 S. W. 1017; Belshe v. Lamp, 91 Mo. App. 477; Barnes v. Plessner, 162 Mo. App. l. c. 464, 142 S. W. 747; Severn v. Railroad, 149 Mo. App. 631, 129 S. W. 477; Robinson v. Schlitz, 135 Mo. App. 32, 115 S. W. 472.] This will be found on reading cases involving injury to live stock by railroad companies, suits in attachment, mechanic’s lien suits, and the like. As was said in the case last cited (l. c. 464): “But though such be true as to cases of this character, the doctrine is much relaxed with respect to the ordinary class of cases falling within the jurisdiction of the justice, when the essential' jurisdictional facts appear in the proof made in the case, though they are not shown on the face of the record proper. For instance, where it appears in the proof that both plaintiff and defendant reside in the same or an adjoining township in which the' suit is instituted, the matter of jurisdiction sufficiently appears. [Trimble v. Elkins, 88 Mo. App. 229-236.] Our statute (Sec. 7399, Revised Statutes 1909) provides that ‘Every action recognizable before a justice of the peace shall be brought before some justice of the township, either: First, wherein the defendants, or one of them, resides, or in any adjoining township,’ etc.” [See, also: Lutes & Dulaney v. Perkins, 6 Mo. 57; Collins v. Kammann, 55 Mo. App. 464; Rowe v. Schertz, 74 Mo. App. l. c. 606; Powell v. Adams, 98 Mo. 598, 12 S. W. 295; Sutton v. Cole, 155 Mo. l. c. 213, 55 S. W. 1052; Smith v. Lyle Rock Co., 132 Mo. App. 297, 111 S. W. 831; Sappington v. Lenz, 53 Mo. App. 44; Hammond v. Darlington, 109 Mo. App. 333, 84 S. W. 446; Wissman v. Meagher, 115 Mo. App. l. c. 87, 91 S. W. 448; Randall v. Lee & Randall, 68 Mo. App. 561; and 24 Cyc. 498.] In considering the same question as. to jurisdiction of a county court the Supreme Court in the case of State v. McCord, 207 Mo. l. c. 526, 106 S. W. 27, held that it is sufficient if jurisdiction appear from the entire record, citing and approving cases hereinbefore referred to. It will therefore be seen that although the proceedings in a justice’s court must somewhere disclose the jurisdiction, and in certain cases the jurisdiction must appear on the face of the proceedings, yet in other cases of which such courts entertain jurisdiction one may look not only to the face of the proceedings but to the entire proceedings, that is, the evidence, to ascertain whether the justice had jurisdiction; and, as the case before ns falls within the last-mentioned class of cases, if the evidence sufficiently showed that Johnson township adjoins Kelley township, and that the-justice had jurisdiction of the cause fixed by the residence of the parties, his judgment was not without jurisdiction. That such jurisdiction can be shown by evidence alkmde requires us to hold that the justice’s judgment was not necessarily void because the face of the proceedings fails to show jurisdiction. As before stated, only the record proper is brought here for our review, and as we hold it unnecessary that the record proper in this case show the jurisdictional facts claimed by plaintiffs in error not to exist, the contention of the plaintiffs in error is without merit. The judgment is affirmed.

Robertson, P. J., and Sturgis, J., concur.