Case v. Smith

Decision Date31 December 1923
Docket NumberNo. 14750.,No. 14773.,14750.,14773.
Citation215 Mo. App. 621,257 S.W. 148
PartiesCASE v. SMITH (two cases).
CourtMissouri Court of Appeals

Appeals from Circuit Court, Jackson County; Thad B. Landon and Charles R. Pence, Judges.

Action by Anna M. Case against Edgar C. Smith. From order overruling defendant's plea to jurisdiction and motion to dismiss, defendant appeals; and, from judgment for defendant, plaintiff appeals. Defendant's appeal dismissed, and on plaintiff's appeal judgment affirmed.

L. A. Laughlin, of Kansas City, for plaintiff.

Amos Townsend, of Kansas City, for defendant.

TRIMBLE, P. J.

On June 30, 1921, plaintiff brought suit in the circuit court of Jackson county, Mo., returnable to the September term of that year, alleging that defendant, owner of certain property adjoining hers, collected surface water and sewage and discharged it upon plaintiff's property. She prayed damages in the sum of $2,000 and asked that an injunction issue restraining defendant from the further commission of said wrong. An affidavit for attachment was filed alleging, among other things, that affiant "has good reason to believe, and does believe, that said defendant is a nonresident of the state of Missouri," and thereupon an attachment was issued and defendant's property was attached on July 1, 1921, and a non est return was made as to defendant.

On November 8, 1921, summons was issued, directed to the sheriff or other officer authorized to serve process in Harris county, Tex., commanding him to summon defendant to appear on the first day of the January term; it being the 9th day of January, 1922. This was returned executed, on November 29, 1922, by delivering a copy of the summons and petition to defendant.

On the third day of the January term, January 11, 1922, defendant, appearing specially and for the purpose of the motion only, moved to quash the service of the writ of attachment on the ground that the sheriff of Jackson county had not notified the tenants occupying the property attached as required by the latter part of paragraph 3 of section 1747, R. S. 1919. On January 30, 1922, this motion to quash was overruled.

At the same term and on February 3, 1922, defendant, "appearing for the purpose of raising the question of jurisdiction only," filed a plea to the jurisdiction and motion to dismiss, setting up that defendant's property had three six-apartment houses thereon, making eighteen apartments in all, which were all occupied by tenants of defendant, and raising the point that the sheriff's return on the attachment writ failed to show that he notified the tenants 10 days before the return day of the writ and did not set out the names of the occupying tenants as required by section 1747, R. S. 1919.

On March 3, 1922, still during the January term, the court overruled this plea to the jurisdiction and motion to dismiss. Three days later, but still at the January term, 1922, defendant filed a motion to set aside said overruling order and also a motion for a rehearing of the plea to the jurisdiction and motion to dismiss. All of these matters were had and done in the assignment division, which, during the January term, was division No. 8.

At the opening of the March term, 1922, division 9 became the assignment division, and on March 20, 1922, the cause was assigned to division No. 8 to make up the pleadings.

On April 8, 1922, of said March term, defendant's motion to set aside the overruling order of March 3d, and to grant a rehearing of the plea to the jurisdiction and motion to dismiss, were by the court, division No. 8, overruled, and the cause was ordered returned to the general docket. On April 11, 1922, the cause was assigned to division No. 8. Defendant on the same day, to wit, April 11, 1922, filed affidavit and bond for appeal, and an appeal was allowed to our court. Said appeal is the one now in this court, entitled, as shown at the head of this opinion, "Anna M. Case, Respondent, v. Edgar C. Smith, Appellant,". No. 14750. On June 2, 1922, during the May term of that year, the cause, notwithstanding the fact that an appeal therein had been allowed, was assigned to division No. 3. How it got back from division No. 8 to the assignment division, so as to be by the latter assigned to division No. 3, does not appear.

At any rate, on June 2, 1922, of the May term, plaintiff appeared in division No. 3 and obtained a, judgment by default for 82,000 damages and sustaining the attachment against defendant; the judgment being a special one to be levied against the property attached.

On July 26, 1922, in vacation, defendant filed in division No. 3 a motion to set aside this default judgment, the motion reciting that defendant comes "pleading specially and solely for the purpose of this motion." The grounds of this motion were four in number: (1) That an appeal in said cause had been allowed and was pending at the time the default judgment was rendered; (2) that the cause was not listed for trial nor notice thereof published in the Daily Record as required by the rules of court; (3) that the cause was presented as a jury-waived case, when it was one in equity; (4) that defendant had no knowledge that the cause had been assigned to division 3 or would be assigned to any division. Said motion also struck at the merits of plaintiff's case. No action was taken on this motion during the May term, 1922.

On October 2, 1922, defendant, by leave of court, filed in division 3 an amended motion duly verified, to set aside the default judgment, giving the same reasons and others in support thereof and alleging he had a meritorious defense. At the November term, 1922, December 2d of that year, defendant's amended motion was sustained. Plaintiff, at the same term and on December 6, 1922, filed motion for a rehearing of the motion to set aside; but same was overruled. Thereupon the case was called for trial; but, the plaintiff not appearing, the court rendered judgment that plaintiff take nothing by her suit and that defendant go hence without day. Plaintiff then filed motion for new trial and in arrest, and these being overruled, she appealed. This is the other case, No. 14773, set out and appearing at the head of this opinion.

The appeal of defendant in case No. 14750 was briefed, argued, and submitted on both sides, at the March term, 1923, of our court; but owing to the earnest insistence of appellant therein that another appeal had later been taken by plaintiff, which would come up at the next term, and the two should be considered at the same time, the case No. 14750 was laid aside to be considered when appeal No. 14773 was before us.

So far as concerns defendant's appeal, case No. 14750, it clearly appears to be premature. Defendant filed in the trial court a plea to the jurisdiction and to dismiss because the sheriff's return on the writ of "attachment did not show that the tenants occupying defendant's property had been notified and did not set out the names of said tenants, when in fact there were tenants in possession of and occupying the property. Neither the petition nor the return stated or showed that any tenants were occupying said property, and hence defendant could have joined a plea to the jurisdiction with a plea to the merits in his answer without waiving the question of jurisdiction. Newcomb v. New York, etc., R. Co., 182 Mo. 687, 707, 81 S. W. 1069; Roberts v. American National Assur. Co., 201 Mo. App. 239, 243, 244, 212 S. W. 390. Instead of doing this, he merely filed a plea to the jurisdiction, and when this was overruled he could have withdrawn and, after final judgment was rendered against him, then appealed. Bussiere's Adm'r v. Sayman, 257 Mo. 303, 315, 165 S. W. 796. He did not do this, but upon the overruling of his plea to the jurisdiction and motion to dismiss, he appealed. There had been no final judgment in the case. The suit itself had not been disposed of, and there is no statute allowing an appeal from the order made. Section 1469, R. 6. 1919; Tamblyn v. Chicago Lead, etc., Co., 161 Mo. App. 296, 301, 143 S. W. 1095; Cooper Wagon, etc., Co. v. Cornell, 131 Mo. App. 344, 111 S. W. 521. For this reason the only thing we can do in case No. 14750 is to dismiss the appeal without considering or deciding any of the questions attempted to be raised and discussed. Said appeal is therefore, with the concurrence of the other judges, dismissed.

We next take up and consider case No. 14773, plaintiff's appeal from the judgment in favor of defendant rendered after the default judgment in plaintiff's favor had been set aside. The mere statement of the judgment appealed from answers defendant's contention that the appeal does not lie. It is true, no appeal lies from the order...

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