Deck v. Wright

• Decision Date: 23 February 1909
• Citation: 116 S.W. 31,135 Mo. App. 536
• Parties: DECK v. WRIGHT et al.
• Court: Missouri Court of Appeals

116 S.W. 31

135 Mo. App. 536

DECK v. WRIGHT et al.

St. Louis Court of Appeals. Missouri.

February 23, 1909.

1. JUSTICES OF THE PEACE (§ 86) — PLEADING — AFFIDAVIT FOR ATTACHMENT AS STATEMENT.

An affidavit for attachment before a justice of the peace, which alleges facts sufficient to constitute a cause of action, may be treated as a statement of plaintiff's cause of action, where no attachment of property was in fact made and personal service of summons was made on defendant, in response to which he appeared and participated in the trial.

2. JUSTICES OF THE PEACE (§ 84) — APPEARANCE — WAIVER OF OBJECTION TO JURISDICTION.

An objection as to the jurisdiction of a justice of the peace over defendants is waived by appearance.

3. JUSTICES OF THE PEACE (§ 134) — JUDGMENT — ACTION ON.

An action may be maintained on a final judgment of a justice of the peace.

4. JUSTICES OF THE PEACE — (§ 124) — JUDGMENT — AGAINST ONE OR MORE OF SEVERAL DEFENDANTS.

Rev. St. 1899, § 766 (Ann. St. 1906, p. 745), provides that a judgment is the final determination of the rights of the parties in the action. Section 767 provides that a judgment may be given for or against one or more of several defendants. Sections 3933-3935 (page 2169) provide that where there are several defendants, some of them served with process and others not, plaintiff may direct the justice either to discontinue as to all not served, or may continue the suit, and take new process, and, in the absence of such request, the justice shall continue the cause and issue new process. Held, that a judgment against defendants served, entered at the same time that the cause was continued against a defendant not served, was irregular, and not a final judgment.

5. JUSTICES OF THE PEACE (§ 132) — JUDGMENT — ASSIGNMENT.

A judgment in an action before a justice of the peace against two defendants served with process and continued against a third who was not served with process, not being a final judgment, cannot be assigned.

Appeal from Circuit Court, Stoddard County; J. L. Fort, Judge.

Action by W. M. R. Deck against T. J. Wright and others. The action was begun by attachment before a justice of the peace. Judgment was rendered in favor of defendants, and plaintiff appealed to the circuit court, where judgment was given for plaintiff, and defendants appeal. Reversed.

Wammack & Welborn, for appellants. K. L. Spence and N. A. Mozley, for respondent.

REYNOLDS, P. J.

This action was begun by attachment before a justice of the peace of Stoddard county. The only statement filed before the justice was an affidavit of respondent to the effect that he has a just demand against T. J. Wright and F. H. Wright, the appellants here, amounting to $63.63 principal and five years' interest, $50.88, together with $23.90 costs — a total of $138.38 — that respondent was the purchaser and assignee of a certain judgment rendered in a justice's court in favor of one Dublin on April 13, 1900; that respondent "is suing out this writ of attachment as assignee" upon said judgment, and the judgment as shown by the docket record of the justice is set out in the affidavit in full, by which judgment, as so set out, it appears that appellants and one E. O. Braley were summoned to appear before the justice on February 24, 1900, to answer a demand on a note for $60 and $3.60 interest, the note being made by appellants and Braley; that summons was served on the appellants, but returned "not found" as to Braley. The judgment then proceeds: "Parties enter into trial before the justice and after hearing the testimony and argument it is adjudged by me that the defendant (plaintiff) have judgment against T. J. Wright and F. H. Wright for $63.63, with 8 per cent. interest from date of judgment until paid and all costs of this suit and continued as to E. O. Braley." Following the judgment, as set out in the affidavit, is the notation: "For value received I have this day assigned the above judgment to W. M. R. Deck. In testimony whereof witness my hand this 13th

                                                        his
                day of April, A. D. 1900. J. R. Dublin. X."
                                                       mark
                

The affidavit then continues, after averring that the judgment is now due, that affiant (respondent here) has good reason to believe that the defendants (appellants here) have or are about to do various acts that subject them to proceeding by attachment. This affidavit, as substantially set out above, was the only statement filed with the justice. A writ of attachment was issued by the justice, which in usual form summoned the appellants (defendants below) to appear before the justice "to answer the action of the plaintiff," and the return of the constable shows personal service on the defendants, but no levy or attachment upon any property, although the return does state that the constable summoned certain parties as garnishees. It appears that judgment was rendered in favor of appellants here before the justice, whereupon plaintiff (respondent here) appealed to the circuit court, where upon a trial before the court on the attachment and on the merits, both being tried together by the court by agreement of parties, judgment went for resp...