Bornschein v. Finck

• Decision Date: 12 December 1882
• Citation: 13 Mo.App. 120
• Parties: A. BORNSCHEIN, Respondent, v. J. C. FINCK ET AL., Appellants.
• Court: Missouri Court of Appeals

13 Mo.App. 120

A. BORNSCHEIN, Respondent,

v.J. C. FINCK ET AL., Appellants.

St. Louis Court of Appeals, Missouri.

Dec. 12, 1882.

APPEAL from the St. Louis Circuit Court, LINDLEY, J.

Affirmed.

GOTTSCHALK & BANTZ, for the appellants: Injunction will not lie to restrain a court from doing that which on account of want of jurisdiction would be a nullity.-- Sayre v. Tompkins, 23 Mo. 443; The State v. Railroad Co., 32 Mo. 496. The petition fails to allege what defence he has, if any, to the bill sued on.-- Smith v. D'Lashmutt, 4 Mo. 103; Duncan v. Gibson, 45 Mo. 352. It was defendant's duty to raise the point before the justice, and failing to do so, he cannot attack the judgment.-- Montgomery v. Farley, 5 Mo. 235; Fulkerson v. Davenport, 70 Mo. 541.

B. SCHNURMACHER, for the respondent: The justice was without jurisdiction. Jurisdiction must appear of record in an action before a justice.--Rev. Stats., sect. 2839; Easton v. St. Charles, 8 Mo. App. 177; Allen v. Scharringhausen, 8 Mo. App. 229; Fulkerson v. Davenport, 70 Mo. 541.

LEWIS, P. J., delivered the opinion of the court.

A judgment was rendered against the present plaintiff in favor of defendant Finck, before defendant Von Gerichten, a justice of the peace. An execution was issued and placed in the hands of defendant Hruska, as constable, who thereupon summoned C. G. Stifel as a garnishee. The present proceeding is to restrain the defendants, by injunction, from further attempting to enforce the judgment. The circuit court made the injunction perpetual.

There is an agreed statement of the facts, as follows:

“That, on the 13th day of September, 1880, August Bornschein, the plaintiff, resided in the tenth justice's district of the city of St. Louis, and John C. Finck, the defendant, resided in the third justice's district; that Jacob Von Gerichten was a justice of the peace for the fourth district, which adjoins the third, but not the tenth district; that, on said 13th day of September, Finck commenced a suit against Bornschein in the fourth district, and summons was thereupon issued, and served upon Bornschein in the tenth district, where he resided. It is also agreed that, under a judgment by default, without appearance of Bornschein, in said suit so commenced, an execution was issued, and the constable to whom the same was delivered was proceeding to execute the same by garnishing a debtor of said Bornschein. * * *”

It is not pretended that, under the local restrictions limited in Revised Statutes, section 2839, the justice had a shadow of jurisdiction over the cause. The forbearance of learned counsel in this particular, however, seems to disappear with their presentation of other points which we are asked seriously to consider, in justification of a manifestly frivolous appeal.

Some of the points urged for the defendants seem to underlie a general proposition that the plaintiff has suffered no injury. It is not of the least consequence. This action is not for damages sustained, but for the prevention of threatened injury in the future. Objection is made that the plaintiff has not shown that he had a meritorious defence against the unauthorized suit and judgment. It is the right of every citizen, that he shall not be proceeded against, even for a just debt, in a manner which has no sanction in the law. We are told that...