Altergott v. O'Connor
| Decision Date | 30 April 1928 |
| Citation | 6 S.W.2d 1012,222 Mo.App. 852 |
| Parties | FRED ALTERGOTT AS FRED ALTERGOTT FURNITURE COMPANY, RESPONDENT, v. MARIE O'CONNOR, APPELLANT. [*] |
| Court | Kansas Court of Appeals |
Appeal from the Circuit Court of Jackson County.--Hon. James H Austin, Judge.
REVERSED AND REMANDED (with directions).
Judgment reversed and remanded.
Gamble Brown & Allen for respondent.
James B. O'Connor for appellant.
Prince & Harris, amicus curiae.
Trimble, P. J., absent.
This is an action in replevin brought before W. J. CAIRNS, Justice of the Peace. At the time the suit was instituted and tried, the said Justice of the Peace held his office by virtue of a commission issued by the county court of Jackson county, Missouri. The record of his appointment is as follows:
"In the Matter of Petition of Divers Citizens of Kaw Township, Jackson County, Missouri, for the Appointment of an Additional Justice of the Peace for the said Kaw Township, outside of the Present Eight Present Justice Districts, Now is presented and filed a petition for the appointment of an additional justice of the peace for Kaw Township, Jackson County, Missouri; and the court having examined said petition and being well advised in the premises, finds that said petition is signed by more than twelve qualified voters of such township living more than five miles from the nearest justice in said township; and it is therefore ordered that said petition is and the same is hereby granted and the court does hereby appoint W. J. CAIRNS a resident of the immediate neighborhood of the petitioner's and who resides more than five miles from any other justice of the peace for said township, as a justice of the peace of said Kaw Township, Jackson County, Missouri, to reside and hold office outside of any of the eight justice of the peace districts of said Township, and for a term expiring on the general election day of the year when justices of the peace shall be next elected for said township as provided by law (vice Sutton R. Layton under appointment dated December 3, 1918) at which said time said office shall become vacant without any further action of this court."
The action was filed November 27, 1926. Defendant failed to appear and default judgment was taken.
The evidence shows that the county court by the following order, which is authorized by the statute, divided Kaw Township into eight Justice of the Peace Districts. The order is as follows:
"The County Court of Jackson County, Missouri, by virtue of Section No. 6090, of the Revised Statutes of 1889, divided said Kaw Township, into Eight Justices of the Peace districts, and established the boundary lines of each district." This order was duly approved February, 1890.
The evidence further shows that this case, before W. J. CAIRNS, was tried in the Sheidley Building, Kansas City, Missouri. The Sheidley building was located outside the district for which Justice CAIRNS was appointed, and is in District No. 3 of Kaw Township. This evidence went in without objection.
The return of the constable is as follows:
Defendant appealed and in the circuit court filed a plea to jurisdiction. This plea was overruled and appellant, after an unsuccessful motion for a new trial, and in arrest of judgment, defendant brings the case here on appeal.
Section 2924, Revised Statutes 1919, provides:
"Justices of the peace to have jurisdiction coextensive with county--exception. Every such justice of the peace shall have original jurisdiction coextensive with the county in which he shall be elected, except in landlord and tenant cases, and in cases of forcible entry and detainer and of unlawful detainer, which shall be brought before a justice of the peace in the township where the property to be affected is situated.
We think this section gives Justice Cairns jurisdiction in replevin. [Verner v. Kelly, 193 Mo.App. 670.]
The question still remains whether or not Justice CAIRNS was holding his court outside his district when he was trying this case, and second, if so, were his acts, outside his district, legal.
We will first discuss whether or not Justice CAIRNS was holding his court outside of his territorial jurisdiction when he was trying this case. This is a question of first impression in this State.
The section under which Justice CAIRNS holds his office is 2689, R. S. 1919, and is:
It is evident this section was passed for the convenience of those who live in the immediate neighborhood, and at least five miles from any other justice of the peace. The justice courts have always been known as "the poor man's court." The Legislature evidently had that in mind when it provided for districts and the appointment of justices of the peace by the county court. Would this theory be carried out if a justice could hold his court in any other district than the one for which he was appointed? We think not. If the respondent's theory is correct, all the justices in the township could congregate, for the purpose of holding court, in one building within the township and in this way the very underlying purpose of the act of the Legislature be thus defeated.
The Supreme Court in the case of State ex rel. v. Pollock, 276 S.W. 20, in passing upon the constitutionality of section 2726A, discussed section 2689, and construed said section to the effect that the justices appointed under this section were "local" and "not wandering;" that their appointment was a matter of necessity, which was a fact to be found by the county court. Could this reasoning lead to any other conclusion but that the justice appointed, by reason of necessity, or for convenience of the people, must hold this court within the district in which he was appointed? The Supreme Court in State ex rel. v. Pollock, supra, said:
We hold, therefore, that Justice CAIRNS was holding his court outside of his jurisdiction at the time this case was tried.
The second question then arises, were his acts legal when he was holding his court outside of his district?
There is no case in Missouri discussing this question but outside the State we find the following:
Kelley's Justice Treatise, sec. 5, page 7, says:
"A justice elected for one district or township has no right or authority to establish his office and exercise his official functions within the limits of another district or township."
In Johnston v. Hunter, 50 W.Va. 52, 40 S.E. 448, the Supreme Court had the same question before it and said, l. c. 58:
"The Constitution requires him to reside in his district, and, no place being designated at which he shall hold his court, as in the case of a circuit judge, the presumption is that one reason for this requirement is to secure the holding of such courts in all the districts of the county, and, as said by Judge McWHORTER, to bring...
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