Eldon Ice & Fuel Co. v. Vanhooser

• Decision Date: 29 April 1912
• Citation: 147 S.W. 161,163 Mo.App. 591
• Parties: ELDON ICE & FUEL CO., Respondent, v. H. B. VANHOOSER, Appellant
• Court: Kansas Court of Appeals

147 S.W. 161

163 Mo.App. 591

ELDON ICE & FUEL CO., Respondent, v. H. B. VANHOOSER, Appellant

Court of Appeals of Missouri, Kansas City

April 29, 1912

Appeal from Miller Circuit court.--Hon. John M. Williams, Judge.

AFFIRMED.

Judgment affirmed.

W. S Stillwell, Eugene Kraemer and R. M. Embry for appellant.

L. N Musser, W. S. Pope and W. M. Williams for respondent.

OPINION

ELLISON, J.

Plaintiff's action is replevin, begun in the circuit court, where he recovered judgment.

The objections to the judgment relate principally to the jurisdiction of the trial court, both as to the person and subject-matter. The former objection need not be considered further than to say there was a general appearance made by defendant. There was a special appearance for the purpose of a motion to dismiss based on the ground, among others, that no "summons or petition was served on defendant." But afterwards there were several appearances generally. After the motions were overruled, and at the same term of court, a continuance was granted "by consent of parties" to the next term. That, alone, amounted to a general appearance.

The chief complaints concern the petition. It seems that a petition and affidavit were made in one paper. It was in the form of a petition and contained all things necessary to be stated in the affidavit when filed as a separate paper, and at the bottom an affidavit was attached; but the petition did not contain a prayer for judgment for a recovery of the property. During the pendency of a motion to dismiss, the trial court gave plaintiff permission to amend by adding the prayer, and the amendment was made, but there was no new affidavit.

When leave was given to amend, no exception was taken. The motion to dismiss was then overruled and no exception saved. Ordinarily, failure to except would leave no right of complaint, in an appellate court. [Meeks v. Mining Co., 141 Mo.App. 648, 124 S.W. 1084.] But defendant insists that the court had no jurisdiction of the subject-matter so far as this case is concerned; that is, that while the court had jurisdiction of replevin generally, there was nothing in this case to call such jurisdiction in action, or to put it in motion. We readily concede that though a court has jurisdiction of a class of actions, there must be a proper invitation for an exercise of that jurisdiction--the jurisdiction must be invoked. [Charles v. White, 214 Mo. 187, 112 S.W. 545; Munday v. Vail, 34 N.J.L. 418; Waldron v. Harvey, 54 W.Va. 613.]

But where a petition is in all respects sufficient save for the omission of a prayer, as this one, we do not believe that defect so far nullifies the paper as to deprive it of the efficacy of an invocation of jurisdiction; or that it is so far defective as not to afford a base for amendment. The omission of a prayer will not destroy jurisdiction. [Sannoner v. Jacobson, 47 Ark. 31, 14 S.W. 458; ...