Trimble v. Elkin, 88 Mo. App. 229

Trimble v. Elkin

88 Mo. App. 229 | Mo. Ct. App. | 1901

BROADDUS, J.

This was a suit to revive a judgment by scire facias. Erom tbe petition and record it is made to appear: that on tbe twenty-fiftb day of July, 1891, plaintiffs obtained a judgment against tbe defendant before W. S. Pratt, a justice of tbe peace for Oolumbia township, in said county of Boone, on a promissory note for $223.67, and $4.95 costs, witb interest; that on tbe twenty-seventb day of September, 1892, a certified transcript of said judgment was filed in tbe office of tbe circuit clerk of tbe county; and that a writ of scire facias was issued wbicb was served on tbe defendant.

On tbe twenty-first day of February, 1900, a judgment was rendered in favor of tbe plaintiffs reviving said judgment, .from wbicb defendant appealed. During tbe progress of tbe cause tbe defendant moved to dismiss, for tbe reason that tbe justice of tbe peace wbo rendered tbe judgment bad no jurisdiction, and that, therefore, tbe circuit court bad no jurisdiction for tbe following reasons:

1 Because said transcript of tbe justice does not show that tbe summons issued was directed to tbe constable of tbe township in wbicb tbe justice resided, as required by law. 2. Because said transcript fails to show that said summons was served on tbe defendant, or tbe time and manner of such service, as required by law. 3. Because said transcript fails to show that said summons was served in tbe township where tbe defendant resided, and by tbe constable of such township, as required by law. 4. Because said transcript fails to show that said note was filed witb tbe justice before tbe process was issued. 5. Because the petition and tbe transcript show that tbe summons in said original cause was served more than 74 days after tbe date of its issue (if served at all, wbicb is denied.) 6. Because said alleged judgment, having been rendered without due and legal service of tbe summons, or appearance of tbe defendant, tbe same is absolutely void.

*233Tbis motion was overruled by the court, whereupon plaintiffs filed a motion to correct the transcript as recorded by the circuit clerk in his office, for the reason that said clerk, in making the certified copy of the transcript of the judgment sought to be revived, erroneously recited that the service of the summons was “had on the fifteenth day of July, 1892, when the transcript and summons show that it was had on the fifteenth day of July, 1891, and to make it conform to the true date, to-wit: July 15, 1891.” Which motion was sustained. "Upon the hearing of said motion the original transcript was in evidence before the court, and also the note filed with the justice with the date of filing thereon.

Defendant claims that his motion to dismiss should have been sustained because the transcript did not show the essential facts necessary to give the court jurisdiction, and cites numerous cases. As they are all to the same effect we will only notice a few of them. Warden v. Railroad, 18 Mo. App. 664, was a ease on appeal. The defendant was sued for killing stock on its track, the action being instituted before a justice of the peace. It was there held that in order to give the justice jurisdiction, it must not only be alleged that the stock was killed in the township of the justice, or an adjoining township, but it must appear by proof at the trial that the injury happened in the township as alleged. The fact that Rose Hill township adjoined Madison township was admitted on the trial, but there was no evidence showing that the injury was indicted in said Rose Hill township. It being a jurisdictional fact unproved, the court was held not to have acquired jurisdiction. But it will be observed that said fact could not have been made to appear in a transcript, but could only be shown in a bill of exceptions. In other words, it must have been found somewhere on the face of the record, that is, the record made by the bill of exceptions and not the record proper.

*234In Olin v. Zeigler, 46 Mo. App. 193, the suit was on a duebill. As the record before the court, that is, the whole record on appeal, did not show the filing of the duebill with the justice, the court held that he did not have jurisdiction. On the other hand, it was held that when a note had been lodged with the justice of the peace before issue of process, it gave him jurisdiction, although he had failed to mark it filed: See Randall v. Lee, 68 Mo. App. 561. And in that case the docket recites that plaintiff filed a promissory note, although it was a duebill, and that the amount was $25Y.Y0 when in fact the amount was $251.

It is not essential to the validity of a judgment of a justice of the peace that the jurisdictional facts should appear from his docket entries; it is sufficient if they appear anywhere on the face of the proceedings. Collins v. Kammann, 55 Mo. App. 464. And these cases are not in conflict with these cited by defendant but are in harmony with them and apply to a different state of facts. It was certainly competent for the court, upon the original transcript of the justice and the note filed with the proceedings, to correct the copy made by the circuit clerk.

But defendant says that said original transcript shows upon its face that it had been altered — that the dates had been changed. The figures “1892” where they occurred twice were in each instance changed thus: 1891- — which would make the return of the constable read “the fifteenth day of July, 1891,” instead of the fifteenth day of July, 1892, and the date of trial in 1891 instead of 1892. In Patterson v. Fagan, 38 Mo. loc. cit. 84, the court, in reference to a contract offered in evidence that had been materially interlined, said that it was wholly inadmissible. But here there was evidence showing the true date of service and of judgment. And besides, there may have been nothing suspicious about the appearance of the alteration. If *235not, it- was competent to admit it. It must be presumed that the trial judge, wbo beard the evidence and inspected the paper, found nothing in the appearance of the same of a suspicious nature and from the facts, that would justify him in refusing it as evidence. Stillwell v. Patten, 108 Mo. 352.

The summons in this case was in evidence with the return of the constable thereon. The summons shows that it was issued on the second day of July, 1891, by W. S. Pratt, justice of the peace for Columbia township, and was directed to the constable of that township, whose return shows that it was executed in that township on the fifteenth day of July, 1891. The fact that the transcript failed to show a date of issue is fully supplied by the summons itself. This was competent evidence. Brandenburger v. Easley, 78 Mo. 659; Roach v. Coal Co., 71 Mo. 398; Sappington v. Lenz, 53 Mo. App. 44.

It is claimed that the judgment is erroneous. The original judgment is revived and judgment entered for $425 and costs. This includes the accrued interest since the rendition of the original judgment. In Humphreys v. Lundy, 37 Mo. 323, the judgment was for plaintiff for $458.36, debt and damages. The court there held that a scire facias to revive a judgment is not a suit upon the judgment, in which the plaintiff recovers the amount of the original judgment, with interest and costs. That the proper entry is to award execution with interest and costs. In Sappington v. Lenz, supra, a case like this, the court held as the judgment contained a clause reviving the original judgment, that that part which was in the form of a judgment for the amount of the original judgment with interest and cost should be treated as surplusage, and upheld the judgment.

But it is claimed that said transcript fails to show that said summons was served on the defendant where defendant resided. This is true, and neither does it appear by any other means. Section 3839, Eevised Statutes 1899 (which is the same *236as that of section 6126, Revised Statutes 1889), provides, where suits before justices of the peace may be brought. Eirst, wherein the defendants, or one of them, resides, or in any adjoining township; or, second, wherein the plaintiff resides, and the defendants, or one of them, may be found; third, if the defendant is a non-resident of the county in which the plaintiff resides, the action may be brought before some justice of any township in such county where the defendant may be found, etc. It was not made to appear at the trial, that the defendant resided in Columbia township or any adjoining township; or that plaintiffs resided in said township and the defendant was 'found therein; or that he was a non-resident of the county. It only appeared that he was served in the township named. If this is a jurisdictional question, and we think it is, then there was a failure upon the part of the plaintiff to show that the justice had jurisdiction' of the person of the defendant. Had he appeared at the trial, the justice having jurisdiction of the subject-matter, he would have waived jurisdiction over his person, unless he had objected for want of jurisdiction. We are not aware that this precise question has been decided by the appellate courts of the State. But we do not want it understood that it is necessary for the transcript to show the fact of residence of parties; it would be sufficient to prove it aliunde, by the evidence of witnesses or by any other legitimate proof. Eor this omission the cause is reversed and remanded.

All concur.