Enterprise Furniture & Carpet Outfitting Installment Company v. Davidson

• Decision Date: 06 November 1922
• Citation: 244 S.W. 949,211 Mo.App. 664
• Parties: ENTERPRISE FURNITURE & CARPET OUTFITTING INSTALLMENT COMPANY, Appellant, v. SAMUEL DAVIDSON, Respondent
• Court: Kansas Court of Appeals

244 S.W. 949

211 Mo.App. 664

ENTERPRISE FURNITURE & CARPET OUTFITTING INSTALLMENT COMPANY, Appellant, v. SAMUEL DAVIDSON, Respondent

Court of Appeals of Missouri, Kansas City

November 6, 1922

Appeal from the Circuit Court of Andrew County.--Hon. A. M. Tibbels Judge.

AFFIRMED.

Judgment affirmed.

Elliott Spalding and Eugene Silverman for appellant.

Bart M Lockwood for respondent.

OPINION

BLAND, J.

This is an appeal from an order of the circuit court of Andrew County, Missouri, overruling a motion to quash an execution. The execution was issued out of said court on a transcript of a judgment rendered by a justice of the peace of said county. The suit, which was one in replevin, was instituted by plaintiff on November 4, 1921. The property described in the writ was taken and delivered to plaintiff. On November 8 1921, the case was dismissed at the request of plaintiff but the goods were not returned to defendant. On November 18, 1921, defendant appeared and objected to the entry of dismissal and demanded tat the court determine the "right of possession, the right of property and assess the value thereof, and the damages for the taking and detention." Thereupon the justice proceeded to try the issues embraced in defendant's demand and found that the goods were wrongfully taken by plaintiff and fixed the value thereof and damages for the wrongful taking and detention. Thereafter a transcript of the judgment was filed with the circuit clerk and execution issued. Whereupon plaintiff filed its motion to quash the execution, alleging that no valid judgment was ever rendered by the justice against the plaintiff and that the judgment was void upon its face for the reason that no assessment of the value of the property described in the complaint was made by a jury as required by the statute. Other grounds for quashing the execution were contained in the motion but they have now been abandoned.

Two points are made by plaintiff in this appeal: First, that the justice had no jurisdiction, power or authority to proceed in the cause and make a finding but that such action was required to be had by a jury; second, that the judgment was not in the form required by the statute and was void. Section 3116, Revised Statutes 1919, being the section giving rise to this judgment, provides--

"If the property has been taken and delivered to the plaintiff, or is in his possession, and he fails to prosecute his action to final judgment, the justice shall give judgment against the plaintiff and his sureties for all costs, unless the defendant or his attorney shall appear and demand that the right of property or right of possession of the property taken shall be tried by a jury, in which case the justice shall impanel a jury for that purpose. If the jury, after hearing the evidence, shall be satisfied that the property belonged to the defendant at the commencement of the action, or that the defendant was entitled to the possession or had a special interest in the same at that time, they shall find accordingly, and shall assess the value of such property or the value of the defendant's right thereto, and any damages for withholding the same which may be just and proper."

It is contended that the transcript fails to show that a jury was impaneled but recites "that the court finds, etc.," and that the justice had no jurisdiction to try the issues; that the statute is mandatory and required them to be tried by a jury; that at common law the remedy to the defendant, when plaintiff in replevin dismissed his case before trial, was a judgment for the return of the property and there was no authority for the assessment of the value therefor or for an alternative judgment such as is provided by the statute; that the proceeding provided for by the statute for the assessment of the value of the property is summary and unknown to the common law and should be strictly complied with; that failure of the justice to exercise jurisdiction in the manner pointed out by the statute and the failure to follow the procedure prescribed by the statute renders the judgment void.

The general rule in respect to jurisdiction is that if the court has jurisdiction of the parties and the subject-matter or the cause of action, its judgment can not be impeached in a collateral proceeding for errors or mere irregularities. [Colvin v. Six, 79 Mo. 198; Hardin v. Lee, 51 Mo. 241; Merrick v. Merrick, 5 Mo.App. 123.] In the last case it is said at page 126--

"Where a judgment of a court which has jurisdiction of the subject-matter and of the parties is either erroneous or irregularly entered, but stands unreversed and unvacated, and with no attempt made to supersede, alter, or in any way reform it, it would seem clear, on principle, that an execution issued on it can not be quashed on the ground of error or informality in the judgment. "

Such an irregular or erroneous judgment may only be corrected on appeal. That a motion to quash, such as was filed in this case under the circumstances, is a collateral attack upon the judgment, there is no question. [Kansas City ex rel. v. Winner, 58 Mo.App. 299, 302; 1 Black on Judgments (2 Ed.), par. 253.]

Colvin v. Six, supra, was a case involving the change of venue statute, providing that "either party shall be entitled to a change of venue in any civil cause" before a jury is sworn or the trial commenced if he will file an affidavit required by law and...