Carr v. Pennsylvania R. Co.

• Decision Date: 29 November 1904
• Citation: 108 Mo. App. 388,83 S.W. 981
• Court: Missouri Court of Appeals
• Parties: CARR v. PENNSYLVANIA R. CO.<SMALL><SUP>*</SUP></SMALL>

83 S.W. 981

108 Mo. App. 388

CARR v. PENNSYLVANIA R. CO.^*

St. Louis Court of Appeals. Missouri.

November 29, 1904.

JUSTICES OF THE PEACE—EXECUTION—MOTION TO QUASH—JURISDICTION—APPEAL.

1. Appeals from justices' courts being restricted by statute to appeals from judgments and orders of the justice on a motion to retax costs, no appeal lies from a justice's order denying a motion to quash an execution.

2. A justice of the peace has no jurisdiction of a motion to quash an execution.

Appeal from St. Louis Circuit Court; Warwick Hough, Judge.

Action by W. A. Carr against the Pennsylvania Railroad Company. From an order dismissing an appeal from a justice's order denying a motion to quash an execution, defendant appeals. Affirmed.

E. W. Pattison, for appellant. Thomas Morris, for respondent.

REYBURN, J.

This action was brought before a justice of the peace in the city of St. Louis against defendant, a foreign railroad corporation, but having an office and transacting business in that city. The writ was returned duly served, and on return day defendant made default. The justice heard testimony, and rendered judgment against defendant of date March 8, 1904. March 11th an execution issued to the constable. March 17th the defendant, appearing specially for such purpose, filed a motion to quash the execution, which was overruled April 11th by the justice, and on April 15th defendant filed affidavit and bond for appeal to the circuit court. The motion to quash, reciting that defendant appeared specially for the purpose of moving to quash the execution issued in the cause, and for no other purpose, recited that it was a corporation organized and existing under the laws of the state of Pennsylvania, and, proceeding, the defendant prayed the justice to quash the writ, assigning as causes therefor that as such justice he did not have jurisdiction over defendant at time of rendering judgment, and could not lawfully render any judgment whatever against it, and, the judgment purporting to have been rendered against it on the 8th of March was null, void, and of no effect, because a justice of the peace of the city of St. Louis has no jurisdiction over a foreign railroad corporation, and at time of entering such judgment there had not been any sufficient service upon defendant to give such justice jurisdiction over it; that the return of the constable on the summons issued showed there had been no legal service of any writ or summons on defendant. When the transcript and record from the justice were filed in the circuit court, the plaintiff filed a motion to dismiss the appeal, assigning that the appeal was taken out of time, and...