Ewing v. Donnelly

• Decision Date: 08 December 1885
• Citation: 20 Mo.App. 6
• Parties: ROBERT EWING, Respondent, v. J. E. DONNELLY ET AL., Appellants.
• Court: Missouri Court of Appeals

20 Mo.App. 6

ROBERT EWING, Respondent,

v.J. E. DONNELLY ET AL., Appellants.

St. Louis Court of Appeals, Missouri.

Dec. 8, 1885.

APPEAL from the St. Louis Circuit Court, AMOS M. THAYER, Judge.

Reversed and remanded.

D. T. JEWETT, for the appellants: A motion filed before the circuit court from which the execution issued, to suppress such execution, is the proper remedy in this case. Const. of Mo., art. 6, sect. 23; Dillon v. Rash, 27 Mo. 243; Bain v. Chrisman, 27 Mo. 293; Ruby v. Hannibal & St. Jo. R. R. Co., 39 Mo. 480; Caldwell v. Fea, 54 Mo. 55. Unless the plaintiff took all the necessary steps before process issued, to give the justice jurisdiction of the subject matter of the case, the proceedings before the justice are void, and this matter will be looked into by the higher courts in any stage of the proceedings, either on motion to suppress or on appeal. Kansas City v. Flanagan, 69 Mo. 23; Missouri City v. Hutchinson, 71 Mo. 46; State ex rel. v. Baker, 74 Mo. 394. A “just and true account,” as called for by the statute, is an itemized account with debit and credit, or it is no lien. McWilliams v. Allen, 45 Mo. 573; Graves v. Pierce, 53 Mo. 423.

F. A. C. MCMANUS, for the respondent: Where there is no question as to jurisdiction the law conclusively presumes that the judgment rendered is lawful, and courts will so construe it as to give it its proper legal effect. It can not be attacked for error or irregularity upon a motion to quash the execution; such a motion must be grounded on something subsequent to the judgment; and where the execution substantially pursues the judgment, there is no fault in the execution. 5 Mo. App. 123, 525; 22 Ga. 570; 18 Ala. 658; 4 Pa. St. 296; 38 Mo. 159; 2 Wall. 69 U. S. 38; 34 Mo. 188. The justice had jurisdiction of the subject matter, of the amount. and of the persons. 9 Mo. App. 42; 46 Mo. 337. If the petition states a cause of action its defects of statement are cured by verdict. 9 Mo. App. 205, 275, 316.

ROMBAUER, J., delivered the opinion of the court.

The defendant, Walker, is the owner of certain real estate in the city of St. Louis, and the plaintiff obtained a judgment on a mechanic's lien against this property before a justice of the peace under the provisions of article 4, chapter 44, Revised Statutes. The defendant appealed from such judgment but his appeal was dismissed in the circuit court for want of notice.

A transcript of the justice's judgment was thereupon filed in the clerk's office of the circuit court, and an execution issued thereon under the provisions of section 2878, Revised Statutes, against James E. Donnelly, the contractor, and the property of Isaac H. Walker. The defendant moved to quash this execution, on the ground that the proceedings before the justice were without jurisdiction in the premises, against the defendant's property. His motion was overruled by the court, and the correctness of that ruling is brought here for review by this appeal.

It will be thus seen that the only point for our consideration is whether the judgment of the justice, as far as the same affects the defendant, Walker's, property, is void for want of jurisdiction. Mere error or irregularity, preceding the rendition of the judgment, would not warrant a motion to quash the final process issued thereon, but want of jurisdiction will. Holzhour v. Meer, 59 Mo. 434.

Two points are made by the appellant on the question of jurisdiction. First, that it does not appear in the record that the plaintiff filed with the clerk of the circuit court, the notice required by section 2874, showing when and before what justice of the peace the suit was to be instituted. Second, that it does affirmatively appear that he did not file with the justice, a statement of the facts constituting his cause of action as required by section 2874.

There is no evidence in the record, as to whether the plaintiff ever complied with the provisions of the law first hereinabove stated, in regard to notice. If this was a mere question of jurisdiction of the defendant's person, we would not hesitate to hold that the defendant, Walker, waived the omission by personal appearance. Robinson v. Walker, 45 Mo. 120. But this is a question of jurisdiction of subject matter. A justice of the peace has no jurisdiction to entertain a mechanic's lien suit, until all pre-requisite conditions to confer such jurisdiction upon him have been complied with. The notice, which the statute requires to be filed in the circuit clerk's office, prior to the institution of the suit, is as essential a prerequisite as the filing of the account which is to constitute the lien; and as the justice is not only an inferior court, but one whose jurisdiction in the premises is limited and statutory, his jurisdiction in these cases must appear on the face of the proceedings. Cunningham v. Pacific R. R. Co., 61 Mo. 33; Haggard v. Atlantic & P. R. R. Co., 63 Mo. 302; Fletcher v. Keyte, 66 Mo. 285; McQuoid v. Lamb, 19 Mo. App. 153 (1 West. Rep. 433).

A second point made by the appellant is likewise well taken. The statute requires that before any process shall be issued, the plaintiff shall file with the justice “a statement constituting his cause of action.” The statement of such cause of action must necessarily include a statement of facts, which would give him a lien on the property. In proceedings under the same law in courts of record the statute provides that “the petition shall allege the facts necessary for securing a lien.” In construing this latter law the courts of this state have uniformly held that the omission of any facts in the plaintiff's petition, which are essential to give him a lien, is fatal to the proceeding. Heltzell v. Langford, 33 Mo. 396; Gault v. Soldani, 34 Mo. 150; Bradish v. James, 83 Mo. 313. True it is that technical precision is not required in statements filed before a justice. City of Kansas v. Johnson, 78 Mo. 667. But here the justice's jurisdiction depends upon the fact that a statement constituting the cause of action be filed. Reasoning from analogies, and keeping the proposition in view, that the jurisdiction of inferior courts must appear upon the face of the proceedings, we must come to the conclusion that the statement filed before the justice must state all the facts essential to the plaintiff's...