Cooksey v. Kansas City

• Decision Date: 23 March 1885
• Citation: 17 Mo.App. 132
• Court: Missouri Court of Appeals
• Parties: J. G. COOKSEY, Respondent, v. THE KANSAS CITY, ST. JO. & COUNCIL BLUFFS R. R. CO., Appellant.

17 Mo.App. 132

J. G. COOKSEY, Respondent,
v.
THE KANSAS CITY, ST. JO. & COUNCIL BLUFFS R. R. CO., Appellant.

Kansas City Court of Appeals, Missouri.

Mar. 23, 1885.

[17 Mo.App. 133]

APPEAL from Holt Circuit Court, HON. H. S. KELLY, Judge.

Affirmed.

Statement of the case by the court.

This action was instituted in a justice's court to recover damages alleged to have been done plaintiff's mule by the cars of defendant. The statement filed in the justice's court showed, among other matters, that the injury was done on the 18th day of May, 1877; that the action had been pending in the Holt county circuit court since the 10th day of August, 1877; that at the January term of said court for 1878, the plaintiff recovered judgment therein, which judgment, on appeal, was reversed by the Supreme Court, and the cause remanded; and that at the January term, 1882, of said circuit court, the plaintiff dismissed said action. The present suit was brought on the 13th day of March, 1882.

On the summons issued by the justice in this action he made the following indorsement: “At the request and risk of plaintiff, I deputize Squire Carter to serve the within writ.

M. V. DUNN, Justice of the Peace.”

The defendant suffered a default in the justice's court, and after an ineffectual motion to set same aside, it duly prosecuted its appeal to the circuit court. At the second

[17 Mo.App. 134]

term of the circuit court thereafter, the defendant having failed to give plaintiff the statutory notice of the taking of the appeal, the appeal having been taken after the day of the rendition of the judgment, the plaintiff, the appellee, filed motion to affirm the judgment of the justice. Thereafter, and during the pending of plaintiff's said motion, the defendant filed motion to dismiss the cause, alleging as ground therefor, because the court had no jurisdiction of the person of the defendant. The Court sustained the motion of plaintiff, and affirmed the judgment of the justice, and refused to entertain defendant's motion to dismiss the cause. Thereupon defendant filed motion in arrest of judgment, alleging therein, that the court had not jurisdiction of the person of defendant; that the petition failed to state facts sufficient to constitute a cause of action; and because it alleged facts showing that plaintiff had no cause of action; and because the court erred in refusing to sustain defendant's motion to dimiss.

This motion being overruled, the defendant prosecuted its appeal to the proper court.

STRONG & MOSMAN, for appellant.

I. In this case judgment, by default, was rendered against defendant by a justice of the peace. Defendant filed its motion for a new trial, alleging want of jurisdiction of its person and the subject matter, which was overruled and defendant appealed to the circuit court. In the circuit court the defendant filed its motion to dismiss, which the court disregarded and affirmed the judgment of the justice. Defendant filed its motion in arrest of judgment, which was overruled and final judgment rendered against it, from which judgment it appealed to this court.

II. In courts of general jurisdiction a default admits all the traversable allegations of the petition well pleaded (38 Mo. 146), but a default does not admit that those facts constitute a cause of action.-- Madison Co. v. Smith, 95 Ill. 328; Weil v. Green County, 69 Mo. 289.

III. Appellant urged in its motion in arrest of

[17 Mo.App. 135]

judgment: 1. That upon the record said judgment is erroneous. 2. That the petition failed to state facts sufficient to constitute a cause of action. 3. That the petition alleged facts showing that plaintiff had no cause of action. If these objections are well founded this cause must be reversed.-- State v. Matren, 38 Mo. 489; 62 Mo. 171. “A party by not raising the objection cannot give the court jurisdiction over matters where it is forbidden by law; nor will a judgment be rendered, or be allowed to stand where it is clear from the statement of the party that he is not entitled to it.”--Bliss on Pleading, sect. 435; Weil v. Green County, 69 Mo. 286; Miller v. Davis, 50 Mo. 572. Here the date of the injury is distinctly stated.

IV. As to the specially pleading of the statute (of limitations) we say, that in justice's courts the proceedings throughout are summary without the forms of pleadings, and precision and conformity to rigid rules of pleadings cannot be invoked in regard to such proceedings.-- Kruse v. Hagedorn, 50 Mo. 576...