Case v. Smith, No. 14750.

CourtMissouri Court of Appeals
Writing for the CourtTrimble
Citation215 Mo. App. 621,257 S.W. 148
Decision Date31 December 1923
Docket NumberNo. 14750.,No. 14773.
PartiesCASE v. SMITH (two cases).
257 S.W. 148
215 Mo. App. 621
CASE
v.
SMITH (two cases).
No. 14750.
No. 14773.
Kansas City Court of Appeals. Missouri.
December 31, 1923.

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.

257 S.W. 149

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...

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23 practice notes
  • State ex rel. Bostian v. Ridge, No. 39364.
    • United States
    • United States State Supreme Court of Missouri
    • 2 Julio 1945
    ...has no jurisdiction thereof. Secs. 211, 283, 2100, R.S. 1939; State ex rel. Patton v. Gates, 143 Mo. 63, 44 S.W. 739; Case v. Smith. 215 Mo. App. 621, 257 S.W. 148; Hays v. Dow, 166 S.W. (2d) 309; Doerschuk v. Locke, 330 Mo. 819, 51 S.W. (2d) 62: In re Waters Estate, 153 S.W. (2d) 774; Mona......
  • State ex rel. v. Harris, No. 37889.
    • United States
    • United States State Supreme Court of Missouri
    • 13 Marzo 1942
    ...to Show Cause," entered its general appearance, thereby submitting itself to respondent's jurisdiction for all purposes. Case v. Smith, 215 Mo. App. 621, 257 S.W. 148; Evans v. King, 7 Mo. 411; Hill v. Barton, 194 Mo. App. 325; Johnson v. Holt's Administrator, 31 S.W. (2d) 895; Meador v. Ma......
  • State ex rel. Thompson v. Terte, No. 40241.
    • United States
    • United States State Supreme Court of Missouri
    • 8 Diciembre 1947
    ...(2d) 977. (3) The circuit court was divested of jurisdiction regardless of the fact the appeal may have been premature. Case v. Smith, 215 Mo. App. 621, 257 S.W. 148; State ex rel. Callahan v. Hess, 348 Mo. 388, 153 S.W. (2d) 713; Hays v. Dow, 237 Mo. App. 1, 166 S.W. (2d) 309; Houser v. An......
  • Stockwell v. Morris, 1775
    • United States
    • United States State Supreme Court of Wyoming
    • 25 Mayo 1933
    ...are the cases of Aisenberg v. Adams Company, 95 Conn. 419, 111 A. 591, a workman's compensation case, and Borah v. Motor Company, 215 Mo.App. 621, 257 S.W. 145, a damage case, because of the fact that in each of them the relation of master and servant was held to exist, mainly because the e......
  • Request a trial to view additional results
23 cases
  • State ex rel. Bostian v. Ridge, No. 39364.
    • United States
    • United States State Supreme Court of Missouri
    • 2 Julio 1945
    ...has no jurisdiction thereof. Secs. 211, 283, 2100, R.S. 1939; State ex rel. Patton v. Gates, 143 Mo. 63, 44 S.W. 739; Case v. Smith. 215 Mo. App. 621, 257 S.W. 148; Hays v. Dow, 166 S.W. (2d) 309; Doerschuk v. Locke, 330 Mo. 819, 51 S.W. (2d) 62: In re Waters Estate, 153 S.W. (2d) 774; Mona......
  • State ex rel. v. Harris, No. 37889.
    • United States
    • United States State Supreme Court of Missouri
    • 13 Marzo 1942
    ...to Show Cause," entered its general appearance, thereby submitting itself to respondent's jurisdiction for all purposes. Case v. Smith, 215 Mo. App. 621, 257 S.W. 148; Evans v. King, 7 Mo. 411; Hill v. Barton, 194 Mo. App. 325; Johnson v. Holt's Administrator, 31 S.W. (2d) 895; Meador v. Ma......
  • State ex rel. Thompson v. Terte, No. 40241.
    • United States
    • United States State Supreme Court of Missouri
    • 8 Diciembre 1947
    ...(2d) 977. (3) The circuit court was divested of jurisdiction regardless of the fact the appeal may have been premature. Case v. Smith, 215 Mo. App. 621, 257 S.W. 148; State ex rel. Callahan v. Hess, 348 Mo. 388, 153 S.W. (2d) 713; Hays v. Dow, 237 Mo. App. 1, 166 S.W. (2d) 309; Houser v. An......
  • Stockwell v. Morris, 1775
    • United States
    • United States State Supreme Court of Wyoming
    • 25 Mayo 1933
    ...are the cases of Aisenberg v. Adams Company, 95 Conn. 419, 111 A. 591, a workman's compensation case, and Borah v. Motor Company, 215 Mo.App. 621, 257 S.W. 145, a damage case, because of the fact that in each of them the relation of master and servant was held to exist, mainly because the e......
  • Request a trial to view additional results

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