40 S.W. 123 (Mo. 1897), Lovitt v. Russell

Citation:40 S.W. 123, 138 Mo. 474
Opinion Judge:Gantt, P. J.
Party Name:Lovitt v. Russell, Appellant
Attorney:Kinley, Carskadon & Kinley for appellant. Clarence S. Palmer for respondent.
Judge Panel:Gantt, P. J. Sherwood and Burgess, JJ., concur.
Case Date:April 03, 1897
Court:Supreme Court of Missouri

Page 123

40 S.W. 123 (Mo. 1897)

138 Mo. 474



Russell, Appellant

Supreme Court of Missouri, Second Division

April 3, 1897

Appeal from Jackson Circuit Court. -- Hon. John W. Henry, Judge.

Reversed and remanded with directions.

Kinley, Carskadon & Kinley for appellant.

(1) This proceeding is a collateral attack on a judgment, hence unless the circuit court was absolutely without jurisdiction, the judgment will be held valid; irregularities, if any, will not affect the same; if the judgment was irregular or voidable, but not void, it will support the execution and sale, and the sheriff's deed will vest title in the purchaser. Charley v. Kelley, 120 Mo. 134; Burke v. Kansas City, 118 Mo. 309; 23 S.W. 613; Wellshear v. Kelley, 69 Mo. 351; Allen v. McCabe, 93 Mo. 143; Mason v. Messenger et al., 17 Iowa 261; Quayle v. Railroad, 63 Mo. 465. (2) The plaintiff took title to this property, subject to these proceedings, and is bound by all these proceedings. The owners of the lot were, as it is admitted in the record, properly in the mayor's court, and there is no complaint or claim of any kind affecting the proceedings until the case is appealed to the circuit court; then after the circuit court acquired jurisdiction it is claimed that the failure to continue the proceedings from time to time affected the jurisdiction of the court. If these lapses affect the proceedings at all, they are mere irregularities, and do not affect the judgment. Brown v. Walker, 85 Mo. 262; Townsend v. Cox, 45 Mo. 402. (3) All intendments are indulged in to support judgments of courts of record where jurisdiction of the proceedings appears. Errors or irregularities will not interfere with such presumptions. The setting aside the verdict of the jury and the judgment rendered thereon by the circuit court on February 7, 1891, would not affect the jurisdiction of the court, nor would all subsequent proceedings be void. If error, it should have been remedied by appeal; this not having been done, it can not be attacked collaterally, as attempted in this case. 1 Black on Judg., par. 270; Blake v. Lyon Mfg. Co., 77 N.Y. 626; Hilton v. Bachman, 24 Neb. 490; Voorhees v. Jackson, 10 Peters, 449-472; Van Fleet Coll. Att. Tit. Presumptions; Ellis v. Jones, 51 Mo. 180-186; Crenshaw v. Snyder, 117 Mo. 167, 177. (4) The power of the circuit court to hear these appeals from the mayor's court is a judicial power, and when rightly called into play, must be regarded within the sphere of its legitimate operation as giving the circuit court the authority to pass judgment in this case, which involves the exercise of judicial power and carries with it that conclusive sanction which is necessary to make the judgment effective. Railroad v. Lackland, 25 Mo. 515; Holt Co. v. Cannon, 114 Mo. 514; Union Depot v. Frederick, 117 Mo. 138; Lingo v. Burford, 112 Mo. 149.

Clarence S. Palmer for respondent.

(1) The charter provides that when the case be filed, it shall be immediately docketed upon the filing of the transcript and stand for trial, and shall at the same term, and shall always, stand for trial, and shall not in any case be continued to any succeeding term, but for good cause may be postponed from week to week in the discretion of the circuit judge. Even if jurisdiction has been acquired in a condemnation case by the tribunal before which it is to be tried, such jurisdiction may be lost. Lewis on Em. Dom., sec. 603; Mills on Em. Dom., sec. 90. (2) If the statutory remedy is not strictly followed, no title or easement is obtained, and the condemning party has no defense to the usual common law action. Mills on Em. Dom. [2 Ed.], sec. 90; Blaisdell v. Winthorp, 118 Mass. 138; Lewis on Em. Dom., sec. 657; Breese v. Poole, 16 Ill.App. 551; City of New Orleans, in proceeding to open Dryades street, 11 La. Ann. 458. The last case is exactly in point as the facts are almost exactly identical with the facts in this case, where the jury did not report at the time specified. (3) In this case the execution was issued for the gross amount of benefits instead of the net amount of the benefits, after deducting damages. Execution must conform to judgment, and a material variance is fatal. 7 Am. and Eng. Ency. of Law, 124, note 1. (4) The defendant is not a...

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