Wissman v. Meagher

115 Mo. App. 82 | Mo. Ct. App. | 1905

BLAND, P. J.

— Appeal from the order of the circuit court overruling appellants’ motion to quash an execution issued upon a transcript judgment of a justice of the peace, filed in the office of the clerk of the circuit court. The grounds assigned in the motion for quashing the execution are as follows:

“1. That the said justice of the peace, Frank M. Kleiber, had no jurisdiction of the subject-matter of the alleged proceedings in favor of the said L. Wissman & Go. and against defendants, James V. Webb and William M. Bainbridge, on their property and buildings, and had no power and authority to hear evidence or adjudge in favor of a mechanic’s lien.

“2. Because there was in said proceedings no statement of facts which gave the said justice jurisdiction over the subject-matter of mechanics’ liens or the property and buildings of these defendants.

“3. Because the plaintiffs’ statement of their cause of action in said cause before said-Justice Kleiber shows, upon its face, that the necessary steps had not been taken by plaintiffs to entitle them to a mechanic’s lien (a certified copy of said statement is hereto attached, marked Exhibit ‘B,’ and made a part of this motion).”

1. The suit before the justice was to foreclose and enforce a mechanic’s lien on the real property of appellant Bainbridge. The contention of appellants here is that the statement filed before the justice was insufficient to confer jurisdiction of the cause. The statement failed to allege that the plaintiffs therein had filed with the clerk of the circuit court, a notice showing when and before what justice of the peace they would institute suit to foreclose their lien. Section 3893, Revised Statutes 1899, requires that such a notice shall be -filed before suit is begun. The transcript of the justice’s judgment, however, contains the following in the recital of the facts found by him: “That plaintiffs did, before the institution of this suit, and on the seventeenth day of September, 1903, file in"the office of the clerk of the circuit court of the city of St. Louis, State of Missouri, notice in writing, notifying the above named defendants that this suit would be instituted before Justice William J. Hanley, a justice within and for the Eighth District of the city of St. Louis, State of Missouri, on the nineteenth day of September, 1903, to- enforce said mechanic’s lien, and that suit, in pursuance of said notice, was begun on said last-named date and within ninety days from the date of the filing of plaintiff’s account for a mechanic’s lien.”

In Ewing v. Donnelly, 20 Mo. App. l. c. 11, this court, speaking with respect to the notice required by section 3893, supra, said:

“Where more than ninety days have elapsed after the filing of the lien account, creditors and purchasers are justified to assume that the lien has expired by limitation, in the absence of any record evidence that suit has been instituted thereon. It is for that reason that the laAV requires the record entry Avithin such time, by notice filed sliOAving when and before what justice suit will be instituted, provided the mechanic elects to sue before a justice. It is for that reason that we held that such notice is as essential a prerequisite to the validity of the judgment as the filing of the account. We can not see on what principle we could dispense with one, which would not alike be applicable to both.

“It is preferable, although perhaps not essential, that the filing of both the account and the notice should be averred in the statement filed before the justice, but it is indispensable that a compliance with the law as to both should appear on the face of the proceedings before the justice in one shape or another, to validate his judgment.”

And in Heimberger v. Harrison, 83 Mo. App. l. c. 548, this court again said: “The jurisdiction of the justice in cases like the present [mechanic’s lien] is special. Every essential to its exercise must appear on the face of the proceedings.”

We think, as was said in Ewing v. Donnelly, supra, it would have been better to have alleged in the petition, that the notice had been filed in the clerk’s office. But we do not think the omission is fatal to the judgment. The defect Avas cured by the recital in the judgment of the fact that the justice found the notice had been filed. While it is the settled law of Missouri that in special proceedings of a statutory origin, in inferior courts having-no common-law jurisdiction, the statutory requirements to confer jurisdiction must affirmatively appear someAvhere on the face of the record, it has never been held that all the jurisdictional facts should be alleged in the paper filed before the inferior tribunal as a foundation for the suit. [Sutton v. Cole, 155 Mo. 206, 55 S. W. 1052; Sappington v. Lenz, 53 Mo. App. 44; State v. Schneider, 47 Mo. App. 669.]

2. Section 4011, Revised Statutes 1899, provides, in substance, that where a cause is tried by a justice without the intervention of a jury, he shall render his judgment within three days after the cause is submitted. The cause was tried to the justice without a jury and it appears he held it under advisement for more than three days after final submission. For this reason it is contended by appellants that by withholding his judgment for more than three days, the justice lost jurisdiction to render the same. The cases cited by appellants in support of this contention (Norton v. Porter, 63 Mo. 346; Smith v. Chapmen, 71 Mo. 217) are decisions denying the right of a justice to amend his transcript after it has been transmitted to the circuit court, and are not in point.

In Herwick v. Barbers’ Supply Company, 61 Mo. App. 454; Stroch v. Dry Goods Company, 65 Mo. App. 102, and Pohle v. Dickmann, 67 Mo. App. 381, it was ruled that the failure of the justice to enter his judgment within three days after the submission of the case did not invalidate the judgment.

3. Appellants raise the point in their brief that the', judgment is void for the reason it is in excess of two hundred and fifty dollars, the amount limited by the general law of the State for the special statutory jurisdiction of justices in mechanic’s lien cases (sec. 3891, R. S. 1899) and that the Legislature had no power to confer special jurisdiction on justices of the peace in the city of St. Louis, as was attempted to be done by the Laws of 1891, page 177, section 11. This point was not raised in the court below. This objection to the judgment is not embraced in the motion to quash, .and hence is not before us for consideration.

We think the judgment of the justice is valid and that the trial court properly overruled the motion to quash the execution issued thereon, and affirm the judgment.

All concur.