Clarkson v. Guernsey Furniture Co.

• Decision Date: 04 May 1886
• Parties: JAMES L. CLARKSON, Appellant, v. GUERNSEY FURNITURE COMPANY ET AL, Respondents.
• Court: Missouri Court of Appeals

22 Mo.App. 109

JAMES L. CLARKSON, Appellant,

v.GUERNSEY FURNITURE COMPANY ET AL, Respondents.

St. Louis Court of Appeals, Missouri.

May 4, 1886.

APPEAL from the St. Louis Circuit Court, SHEPARD BARCLAY, Judge.

Affirmed.

GEORGE D. REYNOLDS, for the appellant.

N. O. GRAY, for the respondents.

THOMPSON, J., delivered the opinion of the court.

This action is brought to enjoin the levy of an execution upon certain real estate of the plaintiff, which excution issued upon a transcript of the judgment of a justice of the peace, filed in the office of the clerk of the circuit court, in a case in which the Guernsey Furniture Company was the plaintiff, and the plaintiff in the present action was the defendant. The principal ground on which the injunction was asked was, that the judgment of the justice was void, by reason of the fact that the justice of the peace, before whom the action was brought, was a justice in and for the fifth judicial district of the city of St. Louis, whereas the defendant was served in the first judicial district of the city of St. Louis, by the delivery of a copy of the summons, at his residence in such district, to a member of his family over fifteen years of age there found. It was admitted at the trial that the fifth judicial district of St. Louis does not adjoin the first judicial district, and that the plaintiff resided in neither of these districts. The plaintiff in the present action, in point of fact, at the time of the service of the magistrate's summons, had separated from his wife, had left his residence in the first judicial district of St. Louis and had gone to live at Arcadia, in Iron county, in this state. Judgment in that action was rendered against him by default and he did not know that the action had been commenced against him until a considerable time after the rendition of the judgment.

I. Upon these facts, the plaintiff in the present action is entitled to have the execution of the judgment enjoined under the decision of this court in Bornschein v. Finck (13 Mo. App. 120), and under the decision of the supreme court in Fare v. Gunter (80 Mo. 522), unless the law prescribing the place of bringing suits before justices of the peace in the city of St. Louis has been changed since the rendition of the decision in Bornschein v. Finck. It is contended on behalf of the defendant that the law was changed by the act of March 31, 1883, passed soon after the decision last named. This act reads as follows: “Justices of the peace in all cities in this state having a population of one hundred thousand or more, shall have civil jurisdiction in all cases, except landlord's summons cases, co-extensive with the limits or boundary lines of such city, in the maximum amounts as now prescribed by statute.” The act also has another section repealing all acts and parts of acts inconsistent with this act. Prior to the passage of this act there was a general statute, which has been on the statute books of this state from the earliest times, and which, as embodied in the present Revised Statutes, reads as follows: “Every justice of the peace shall have jurisdiction co-extensive with the county for which he shall be elected or appointed.” Rev. Stat., sect. 2838. The next section in the present Revised Statutes (Rev. Stat., sect. 2839), imposes a distinct limitation upon the meaning of this section, by prescribing in what township actions before a justice of the peace shall be brought. Under this section, so far as it applies to the present case, the action was required to be brought, either before a justice of the peace of the township wherein the defendant resided, or in some adjoining township. This section has always been understood to apply to the city of St. Louis, and the so-called “judicial districts” of the city of St. Louis are townships within its meaning. The decision of this court in Bornschein v. Finck, supra, proceeded upon this ground and necessarily involved this conclusion. This conclusion, also, is unavoidable in view of the provision of section 3126, Revised Statutes, that: “Whenever the word ‘county’ is used in any law, general in its character to the whole state, the same shall be construed to include the city of St. Louis, unless such construction be inconsistent with the evident intent of such law, or of some law specially applicable to such city.” It is equally unavoidable, in view of the provisions of section 2806, Revised Statutes, in which the word “township” is used interchangeably with the word ““““district” in reference to the magisterial districts of the city of St. Louis. The question, then, is, whether the legislature, by the act of 1883, above quoted, intended to change this rule. The contention on behalf of the plaintiff is, that, whatever may have been intended by those who procured the passage of the act, the language of the act itself, properly construed, does not import an intention to change the previously existing law. It is argued, that because there is a similar provision, giving justices jurisdiction co-extensive with the county, in the Revised Statutes, which applies generally to justices throughout the state, the legislature, in enacting this statute of 1883, must be understood to have intended nothing more than, out of abundant caution, to extend the same provision to the city of St Louis. We are bound to suppose that the legislature, in passing an act of this kind, meant something, and we know that there...