Dennis v. Bailey

• Decision Date: 01 February 1904
• Citation: 78 S.W. 669,104 Mo. App. 638
• Parties: DENNIS v. BAILEY.
• Court: Missouri Court of Appeals

78 S.W. 669

104 Mo. App. 638

DENNIS v. BAILEY.

Court of Appeals at Kansas City, Missouri.

February 1, 1904.

JUSTICES OF THE PEACE—JURISDICTION— REPLEVIN—WAIVER.

1. Rev. St. 1899, § 3839, provides that every action cognizable before a justice shall be brought before some justice of the township, either, first, wherein the defendants, or one of them resides, or in any adjoining township; or, second, wherein the plaintiff resides, and the defendants, or one of them, may be found; third, if the defendant is a nonresident of the county in which the plaintiff resides, the action may be brought before some justice of any township in such county where the defendant may be found. Section 4486 provides that replevin, where the specific property is sought to be recovered, shall be brought in the county in which such property may be found, and that, where defendant is a nonresident of the county in which suit is brought, service shall be made as in attachment. Rev. St. 1879, § 3482, provides that suits by attachment against the property of a person shall be brought in the county in which such property may be found. Held, that a justice in a township in S. county has no jurisdiction of replevin of property in such township where both plaintiff and defendant reside in G. county.

2. The mere fact that defendant appeared to an action of replevin and proceeded to trial without objection before a justice of the peace, who had no jurisdiction of that class of actions nor of the parties, does not waive the lack of jurisdiction.

Appeal from Circuit Court, Sullivan County; J. P. Butler, Judge.

Action by John R. Dennis against C. Tom Bailey. From a judgment for defendant, plaintiff appeals. Affirmed.

Wilson & Clapp and M. Bingham, for appellant. O. G. Williams and E. R. Bane, for respondent.

SMITH, P. J.

The facts agreed to in the case are as follows: That this cause originated before O. G. Allen, a justice of the peace of Bowman township, Sullivan county, Mo., and that it is a replevin suit for 3 head of cattle and 68 bushels of black oats valued at $99 in the affidavit. That said cattle were in said Bowman township, Sullivan county, state aforesaid, at the time of the institution of this suit, and were seized under the writ of replevin in said township by the constable thereof. That at the time of the institution of said suit both plaintiff and defendant were, and now are, residents of Grundy county, Mo. And that at the trial before the said O. G. Allen the plaintiff and defendant, both in person and by attorneys, appeared before the said Allen, and tried said cause by introducing evidence on the merits and arguing the case before the said Allen. The defendant, first having appeared for the purpose of the motion only, filed a motion before said justice to dismiss and refuse to consider the cause for the reason that, both plaintiff and defendant being non-residents of Sullivan county, Mo., and residents of Grundy county, Mo., the court therefore had no jurisdiction to hear or determine the cause. This motion the court overruled, after which the parties proceeded to trial as above set out. The judgment of the justice was for defendant, and plaintiff appealed. In the circuit court the defendant renewed his motion to dismiss, the grounds thereof being the same as those contained in that filed before the justice, that is to say, that, it being admitted of record that neither plaintiff nor defendant were residents of or lived in Sullivan county, the court, by reason thereof, was without jurisdiction to try the cause. This motion was sustained, and judgment was given accordingly for defendant, and from which the plaintiff appealed here.

The sole question thus arising is whether or not the justice had jurisdiction. The jurisdiction of the circuit court was not original, but derivative. If the justice was without jurisdiction, it (the circuit court) had none. It is well settled that justices' courts have only such jurisdiction as is expressly conferred upon them by statute. Bank v. Doak, 75 Mo. App. 332; Brownfield v. Thompson, 96 Mo. App., loc. cit. 342, 70 S. W. 378. If the justice before whom the action was brought had jurisdiction, it was conferred by section 3839, Rev. St. 1899, which provides that: "Every action recognizable before a justice of the peace shall be brought before some justice of the township, either, first, wherein the defendants, or one of them resides, or in any adjoining township; or, second, wherein the plaintiff resides, and the defendants or one of them may be found; third, if the defendant is a non-resident of the county in which the plaintiff resides, the action may be brought before some justice of any township in such county where the defendant may be found; fourth, if the defendant is a non-resident of the state, or has absconded from his usual place of abode, the action may be brought before any justice in any county in this state wherein defendant may be found. * * *" It thus plainly appears that in a case like this, where neither party is a resident of the county in which the action is brought, that the statute confers no jurisdiction on the justice. By reference to article 6, c. 43, Rev. St. 1899, it will be seen that the jurisdiction conferred by said section 3839 in no way is widened or extended by its provisions. Smith v. Simpson, 80 Mo. 634, was where the residence of the plaintiff was Bollinger county and that of...