State ex rel. Newell v. Cave
| Decision Date | 22 December 1917 |
| Citation | 199 S.W. 1014,272 Mo. 653 |
| Parties | THE STATE ex rel. JAMES P. NEWELL v. RHODES E. CAVE, Circuit Judge |
| Court | Missouri Supreme Court |
Peremptory Writ Awarded.
Mortimer B. Levy, Peter T. Barrett and Jones, Hocker, Sullivan & Angert for relator.
(1) Jurisdiction of the subject-matter is conferred by law, and its non-existence may not be waived. Service of process has to do with jurisdiction of the person, and is waived by appearance to the merits. Fithian v. Monks, 43 Mo 515; State ex rel. v. Smith, 104 Mo. 422; State ex rel. v. Neville, 110 Mo. 348; Dowdy v Wamble, 110 Mo. 284; Railway v. Lowder, 138 Mo 536; 7 R. C. L. 1029; O'Brien v. People, 216 Ill. 354. (2) An appearance to the merits of an election contest is a waiver of defects in the service. Lankford v. Gebhart, 130 Mo. 641; State ex rel. v. Oliver, 163 Mo. 679; State ex rel. v. Spencer, 164 Mo. 48; State ex rel. v. McElhinney, 199 Mo. 67; Quartier v. Dowiat, 219 Ill. 326; State v. Moore, 54 S.C. 536; Whitcomb v. Chase, 83 Neb. 360. (3) A writ of mandamus is the proper remedy to compel the reinstatement of the cause. Castello v. St. Louis Circuit Court, 28 Mo. 259; State ex rel. Bayha v. Philips, 97 Mo. 347; State ex rel. v. Homer, 249 Mo. 58; State ex rel. v. Shackleford, 263 Mo. 58; State ex rel. v. Holtcamp, 266 Mo. 372.
Major & Revelle, Spencer & Donnell and George B. Webster for respondent.
(1) Election contests are special statutory proceedings in which the courts of first instance exercise a limited jurisdiction and proceed according to a prescribed and exclusive procedure. State ex rel. v. Slover, 134 Mo. 15; State ex rel. v. Hough, 193 Mo. 643; Bradbury v. Wightman, 232 Mo. 394; State ex rel. v. Robinson, 192 S.W. 1001; State v. Gamma, 149 Mo.App. 702; Taafe v. Ryan, 25 Mo.App. 566; McCrary, Elections (4 Ed.), sec. 370; 15 Cyc. 435. (2) Where such a special statutory proceeding is created the particular method of acquiring jurisdiction specified is essential to its exercise. 11 Cyc. 670; 7 Ency. Pl. & Pr. 378; 1 Bailey on Jurisdiction, sec. 129; Fischer v. Langbein, 103 N.Y. 84; Van Loon v. Lyons, 61 N.Y. 22; People v. Police Board, 6 Abb. Pr. 162. This proposition is recognized and approved by our courts in cases of kindred nature. Odle v. Clark, 2 Mo. 13; Hudson v. Wright, 204 Mo. 412; Pattison v. Lutz, 1 Mo.App. 133, Devore v. Staeckler, 49 Mo.App. 548. It is not otherwise because our circuit courts are courts of general original jurisdiction. Where such courts are vested by statute with special and limited powers in proceedings which do not belong to them as courts of general jurisdiction, and which are not to be exercised according to the course of the common law, their acts and proceedings are to be treated as those of courts of special and limited jurisdiction. Brown on Jurisdiction, sec. 3-a; Furgeson v. Jones, 17 Ore. 204; Morse v. Presby, 25 N.H. 299; Galpin v. Page, 18 Wall. 350. (3) There is no distinction between this case and State ex rel. Woodson v. Robinson, 270 Mo. 212. The notice of contest given by Newell was no notice because served by a private person. When the contestee appeared seventy-four days had elapsed after the expiration of the time within which by statute a valid notice could have been served. There was, therefore, no case pending, no remaining chance to invest any court with jurisdiction, and no act of any party could create or confer any by appearance or consent.
OPINION
In Banc.
Mandamus.
This is an original proceeding instituted in this court, asking for a writ of mandamus against the Honorable Rhodes E. Cave, one of the judges of the circuit court of the city of St. Louis, directing him to reinstate and proceed with the trial of the case of James P. Newell v. Frank M. Slater, an election contest, as to the right to the office of Public Administrator of said city, lately pending in said court, before said judge, and by him dismissed. An alternative writ was issued and served upon Judge Cave, to which he filed a demurrer, thereby admitting the facts stated therein. They are substantially as follows:
Newell, the relator, and Slater were adversary candidates for the office of Public Administrator of the city of St. Louis at the November election of 1916; the Board of Election Commissioners of that city awarded the certificate of election to Mr. Slater. Within the time allowed by the statute the relator, Mr. Newell, served Mr. Slater with a notice of contest. This notice was served, however, not by the Sheriff, but by a private individual. The contents of the notice of the contest is not here material and for that reason is omitted from the statement of the case. The affidavit of the private individual who served Mr. Slater is found in the return. This notice of contest was filed in the office of the Circuit Clerk on the 7th day of December, 1916, and was returnable to the February term, 1917, of the circuit court of the city of St. Louis.
On the 23rd day of December, 1916, the contestee, Mr. Slater, served the relator, Mr. Newell, with a notice of counter-contest, which also is immaterial here. This likewise was served, not by a Sheriff of the city of St. Louis, but by a private individual.
The opening day of the February term of the circuit court of the city of St. Louis for 1917 was the 5th day of February, and on that day Mr. Slater appeared by his counsel and filed his notice of the counter-contest in court.
On the 24th day of February, 1917, the relator served on his adversary an amended notice of contest. This again was served, not by the Sheriff of the city of St. Louis, but by a private individual. This amended notice of contest was filed by leave of court and in open court on the 24th day of February, 1917.
On the 1st day of March, 1917, the contestee, Slater, appeared again in open court, and filed his motion to strike out parts of said amended notice of contest. The ground upon which this motion was rested had nothing to do with the manner in which service had been had under either the original or amended notice of contest. It set up that the original notice of contest was so defective in the matter of averment respecting the names of disqualified voters and the grounds of their disqualification as not to admit of amendment. The contestee later appeared in court and submitted his motion to strike out parts of his amended notice of contest, and the same was overruled by the court.
On the 4th day of May, 1917, the relator filed his application for a recount of the votes cast. On the same day and for the first time the contestee, Slater, challenged the jurisdiction of the court to proceed with the matter by filing his motion to dismiss the proceedings, for the first time contending that the court was without jurisdiction, for the reason that the notice of contest had not been served by any officer of law authorized to serve process.
On the 4th day of June, 1917, the court sustained this motion to dismiss, whereupon followed this application for a writ of mandamus to compel the court (Judge Cave, presiding in the division where the controversy was pending) to reinstate the contest and proceed with the hearing and determination of the same in orderly course.
The correct decision of this case turns upon the proper time and manner of commencing and giving the notice of contest to the contestee as required in Section 5924, Revised Statutes 1909, which reads as follows:
"No election of any county, municipal or township officers shall be contested, unless notice of such contest be given to the opposite party within twenty days after the vote shall have been officially counted."
Counsel for respondent insists with much vigor that since the notice of contest prepared and made out by the contestant was served upon the contestee by a private individual, and not the Sheriff of the city of St. Louis, the same was ab initio null and void, to the same extent as if it had never been prepared or served by any one; also that service of such notice cannot be waived and in support of that insistence counsel rely with much confidence upon the ruling of this court in the case of State ex rel. Woodson v. Robinson, 270 Mo. 212, 192 S.W. 1001.
After a careful study of that case it must be conceded that the opinion therein contains language sufficiently broad and comprehensive to warrant the position taken by counsel in this case; but in that case it must be noticed that the contestee, from the very inception of the case, challenged the jurisdiction of the court over the cause for failure of proper service, and renewed the same at every proper step taken thereafter, so the question of waiver involved in this case was not properly before the court in that case for decision; and what was there decided as to this question was therefore, mere obiter, and not binding on the court.
In the case at bar, as appears from the statement of the case, which is conceded by counsel for all parties to be correct, the contestee repeatedly entered his general appearance in the cause, and at no time prior to May 4, 1917, challenged the jurisdiction of the court for any reason. Upon that day the contestee for the first time filed his motion to dismiss the cause for the reason that the court acquired no jurisdiction over the subject-matter thereof, because the notice of contest had not been served by an officer of the law authorized to serve process, and that the same could not be waived.
Counsel for respondent seem to confuse the subject-matter of the cause with the person of the contestant. It is too plain for argument that the contestant and contestee are the parties to the cause, and the contest of the...
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