Columbia Weighing Mach. Co. v. Rockwell, 17256.

• Decision Date: 04 May 1931
• Docket Number: No. 17256.,17256.
• Citation: 38 S.W.2d 508
• Parties: COLUMBIA WEIGHING MACH. CO. v. ROCKWELL.
• Court: Missouri Court of Appeals

38 S.W.2d 508

COLUMBIA WEIGHING MACH. CO. v. ROCKWELL.

No. 17256.

Kansas City Court of Appeals. Missouri.

May 4, 1931.

Error to Circuit Court, Jackson County; Brown Harris, Judge.

"Not to be officially published."

Action by the Columbia Weighing Machine Company against George W. Rockwell. To review the judgment, defendant brings error.

Affirmed.

Charles A. Stratton, of Kansas City, for plaintiff in error.

Gossett, Ellis, Deitrich & Tyler, of Kansas City, for defendant in error.

BLAND, J.

This is an action for the contract price of a weighing machine sold by defendant in error, hereinafter called the plaintiff, to plaintiff in error, hereinafter called the defendant. There was a verdict and judgment in favor of plaintiff in the sum of $223.50 and defendant brings the case here by writ of error.

The cause originated before John H. Pollock, a justice of the peace within and for Kaw township, Jackson county, Missouri, but was transferred to M. H. Joyce, another justice in said township, by Justice Pollock on the latter's "own motion."

The transcript of the justice shows that the cause was tried before Justice Joyce upon an agreed statement of facts, resulting in a judgment in favor of defendant on March 2nd, 1926; that on March 13th of that year plaintiff filed an affidavit of appeal and recognizance, said affidavit being dated the 11th day of March of said year. The appeal was taken from the merits.

Defendant insists that Justice Joyce had no jurisdiction of the subject matter of the cause for the reason that there is no provision in the justice court statute providing for a change of venue in civil cases upon the motion of the justice, but only upon the motion of either party to the cause, citing in support of this contention sections 2254, 2255, and 2424, Rev. St. 1929. In this connection defendant states that the statute in reference to changes of venue in civil cases in justice courts does not contain a provision similar to section 908, Rev. St. 1929, relating to changes of venue in the circuit court, providing: "If the judge is interested or related to either party, or shall have been of counsel in the cause, the court or judge shall award such change of venue without any application from either party," etc.

Defendant contends that statutes relating to changes of venue must be strictly construed and, as sections 2254, 2255 and 2424 relative to changes of venue in civil cases in justice courts, do not contain any provision for a change of venue except at the instance of either party to the cause, that the change of venue in this instance was void and Justice Joyce obtained no jurisdiction over the subject matter.

Assuming, as defendant contends, that Justice Pollock was without authority to change the venue upon his own motion, we are not prepared to agree with the contention that Justice Joyce did not acquire jurisdiction over the subject matter. The case is brought to this court upon the record proper only. We, therefore, have no information as to whether or not defendant voluntarily submitted to the jurisdiction of Justice Joyce (Burrell-Collins Brokerage Co. v. N. Y. Central Railroad [Mo. App.] 219 S. W. 105; State v. Ware, 69 Mo. 332; Stearns v. Railway Co., 94 Mo. 317, 7 S. W. 270), and if he did, he undoubtedly waived the question of jurisdiction. Justice Pollock had jurisdiction to award a change of venue in this cause and there is no contention that he was without authority to award such a change to Justice Joyce, the claim being merely that he could award it only upon a proper application of either party. Therefore, the granting of the change to Justice Joyce in this instance was at most an irregularity, and, as we may assume in the absence of a bill of exceptions that the parties voluntarily appeared before him and without objection went to trial, the question of jurisdiction was waived. Porter v. State, 5 Mo. 538; Moore v. Wab. Ry. Co., 51 Mo. App. 504; Scott Hdw. Co. v. Riddle, 84 Mo. App. 275; Squires v. City of Chillicothe, 89 Mo. 226, 1 S. W. 23; Voigt v. Avery, 14 Mo. App. 48; Reddick v. Newburn, 76 Mo. 423; Horton v. Toeneboehn, 68 Mo. App. 42; Schaefer v. Green, 68 Mo. App. 168; Fields v. Maloney, 78 Mo. 172, 179; Stearns v. Railway Co., supra; State ex rel. v. Springer, 45 Mo. App. 252.

We have examined the case of Cole v. Cole, 89 Mo. App. 228, and the other cases cited by the defendant. The statute allowed no change of venue in the proceeding under discussion in the Cole Case. The opinion (loc. cit. 234) distinguishes that case from the class of cases to which the one at bar belongs.

It is insisted, however, that the appeal was not taken from the judgment of the justice until eleven days after the judgment was rendered and, therefore, it conferred no jurisdiction upon the circuit court over the subject matter and such jurisdiction could not be waived. The statute, section 2341, provides that an appeal from the judgment of the justice must be made within ten days after the judgment is rendered, but if taken by a non-resident of the county where the suit is instituted, the appellant shall have twenty days to make such appeal. There is nothing in the record proper to indicate whether plaintiff, who appealed from the...