Bullock v. B. R. Electric Supply Co.

• Citation: 60 S.W.2d 733,227 Mo.App. 1010
• Parties: ALICE R. BULLOCK, PLAINTIFF IN ERROR, v. B. R. ELECTRIC SUPPLY CO., DEFENDANT IN ERROR
• Decision Date: 22 May 1933
• Court: Kansas Court of Appeals

60 S.W.2d 733

227 Mo.App. 1010

ALICE R. BULLOCK, PLAINTIFF IN ERROR, v. B. R. ELECTRIC SUPPLY CO., DEFENDANT IN ERROR

Court of Appeals of Missouri, Kansas City

May 22, 1933

Error to Circuit Court of Jackson County.--Hon. Darius A. Brown Judge.

REVERSED AND REMANDED (with directions).

Gossett Ellis, Dietrich & Tyler for plaintiff in error.

Charles P. Woodbury for defendant in error.

OPINION

TRIMBLE, J.

--Alice R. Bullock, originally brought this suit in the circuit court to declare null and void, and to quash the record, of three judgments rendered against her in favor of B. R. Electric Company, each for the sum of $ 541.75, by Sutton R. Layton, a justice of the peace, for Kaw Township, Jackson county, Missouri, on January 3, 1928, on the alleged ground that Layton was without jurisdiction to try said causes outside his territorial jurisdiction.

It was alleged that, on said date, said Layton was a justice "by virtue of an order and commission issued by the County Court of Jackson County, Missouri" whereby "he had authority and jurisdiction" to reside and hold office in Kaw Township, outside of any of the eight established justice-of-the-peace Districts of said township, and five miles from the nearest justice of the peace, but that the above specified judgments were rendered "at an office in the Gumbel Building, 8th & Walnut streets, in Kansas City, Missouri, and within the justice-of-the-peace district of George F. Roach, the duly elected and acting justice of the peace within and for the third justice-of-the-peace district in said township and that said Layton rendered judgments in each of said cases on said day and entered same of record in said Gumbel Building; that on March 28, 1928, a certified transcript of each of said judgments was filed in the office of the clerk of the Circuit Court of Jackson County, Missouri. And the said three judgments are now of record in Transcript Judgment Book No. 10 at pages 391, 392 and 393, and are thus clouds on her real estate.

The trial court found and held that said Justice Layton was without jurisdiction to try said three causes and that the said three cases were tried and the judgments were rendered within the territorial jurisdiction of George F. Roach, justice of the peace of the third district, Kaw Township, Jackson county, Missouri; it was therefore adjudged that the plaintiff's petition be sustained; that said three judgments be, therefore, held, and are, null and void, and the transcripts thereof in the clerk's office are of no effect; and judgment was accordingly rendered in plaintiff's favor for costs.

Said circuit court judgment was rendered on the 34th day of the regular November, 1930, term, it being the 20th day of December, 1930. On December 30, 1930, defendant's motion for a new trial was overruled; also application and affidavit for appeal were filed and appeal allowed on same day, and appellant was allowed until on or before the last day of the January term in which to file bill of exceptions.

The foregoing is shown in, and obtained from, the "short-form transcript" which was filed in the office of the clerk of the appellate court February 26, 1931. Under section 1027, Revised Statutes of Missouri 1929, 2 Missouri Statutes Annotated, page 1306, if the appeal were taken sixty days before the next term of this court, it was returnable to said next term which was the March term, 1931, the first day of which was March 2, 1931. Under section 1028, Revised Statutes Missouri 1929, 2 Missouri Statutes Annotated, page 1310, the appellant was required to file in the clerk's office certified copy of the record entry of the judgment appealed from, together with the order granting the appeal, fifteen days before the first day of the term (March 2, 1931). This was not done, and it was not until February 26, 1931, that appellant filed its transcript, and, had respondent filed a motion to dismiss appeal, the same would have been subject to dismissal. However, before any motion to dismiss appeal was filed, the appellant, on said February 26, 1931, appeared before the clerk in vacation and filed its transcript and then immediately dismissed its said appeal. This appellant had a right to do in order to be in a position to sue out a writ of error. [Thoms v. Sullivan, 79 Mo.App. 384; Erwin v. Missouri, etc., Telephone Co., 173 Mo.App. 508, 519, 158 S.W. 913; Broyles v. State Highway Comm., 223 Mo.App. 71, 75, 8 S.W.2d 1021.]

The next day, February 27, 1931, a writ of error issued out of the clerk's office which was duly returned into court on the 1st day of October, 1931. No bond was given. The October term, 1931, began October 5th and the writ of error having been returned so late as October 1, the case did not appear on that docket but was returnable to the next, or March term, 1932, and appeared on the docket of the April call of said term, April 6, 1932. When it was reached on that day, the case was continued by stipulation to the October term, 1932, and at this last named term it appeared on the January call thereof, January 5, 1933. And on this day it was again continued by stipulation to the succeeding March term, at which it was set on the docket for March 13, 1933, and was then argued and submitted.

The court being in vacation on February 26, 1931, the appellant had the right, immediately after filing its belated transcript, to, at once, dismiss its appeal and sue out a writ of error. No motion to dismiss had been filed by the respondent and no such motion was pending.

A motion to dismiss appeal was filed by respondent March 1, 1933, but it was not until appellant had long before dismissed said appeal on February 26, 1931, and the next day had sued out a writ of error. When this motion came before the court in consultation, the court, not being acquainted with the history of what had been done, ordered the motion "taken with the case." Hence it is now before us for disposition. Obviously, since the case on appeal was dismissed by appellant before the motion to dismiss was filed by respondent, there is nothing for the motion to operate on, and hence is itself to be dismissed or overruled.

On March 1, 1933, a motion was filed by defendant in error herein, Alice R. Bullock, to dismiss, or rather to quash, the writ of error on the ground that an appeal in said case was pending; but this seems to be based upon a misconception of the facts. The appeal had been dismissed before the writ was applied for, and appellant had the right to do so upon complying (which it did), with all the provisions of section 959, Revised Statutes of Missouri 1929, 2 Missouri Statutes Annotated, page 1231. This motion having been likewise "taken with the case" must be, and it is, overruled.

Another motion to quash the writ of error was filed by defendant-in-error on March 13, 1933, the day of which the case was docketed in this court for argument and hearing said motion being on the ground that, in a motion filed in the circuit court by General Electric Supply Company in which it entered its general appearance and asked to be substituted as a party defendant in the case of Bullock v. B. R. Electric Company for the reason that the latter's attorneys had "heretofore filed answer and cross-petition in said suit in the name of said defendant not knowing until within the last few days, that applicant had become the assignee of all defendant's assets including debts reduced to judgments which are the judgments referred to in plaintiff's petition in this cause and the original notes and indebtedness upon which said judgments were duly rendered, and all have become and now are the...