Farrar v. Moore

• Citation: 416 S.W.2d 711
• Decision Date: 31 May 1967
• Docket Number: No. 8619,8619
• Parties: Tommy FARRAR, Plaintiff-Respondent, v. Irene MOORE et al., Defendants-Appellants.
• Court: Court of Appeal of Missouri (US)

Page 711

416 S.W.2d 711

Tommy FARRAR, Plaintiff-Respondent, v. Irene MOORE et al., Defendants-Appellants.

No. 8619.

Springfield Court of Appeals, Missouri.

May 31, 1967.

Wangelin & Friedewald, Poplar Bluff, for defendants-appellants.

Ted M. Henson, Jr., Poplar Bluff, for plaintiff-respondent.

TITUS, Judge.

The capacity to sue, be sued, or be a party appellant or respondent, reposes only in persons in being. 67 C.J.S. Parties §§ 6 and 30. Without being advised when the event occurred, the Notice of Appeal herein states one of the appellants is 'now deceased.' A continued reading hereof will reveal this, unfortunately, is the least of our problems.

Item one of the acutely abridged transcript given us concerns some undisclosed cause of action resulting in a default judgment entered August 19, 1963, by the Magistrate Court of Butler County in favor of the plaintiff-respondent, Tommy Farrar, and against defendants-appellants, Sarah and Irene Moore. The judgment provides 'that the plaintiff have and recover of and from the defendants the property described in plaintiff's petition.' ¹ The transcript entry following the judgment is prefaced by: 'And thereafter to-wit: On the same day an execution was issued,' which would cause surmise 'on the same day' referred to August 19, 1963. However, the execution set forth was issued by the Circuit Clerk of Butler County under date of December 21, 1965, on a $600 magistrate judgment plaintiff is said to have obtained against defendants August 19, 1963, a transcript of which had been filed in the Office of the Circuit Clerk (presumably pursuant to V.A.M.S. § 517.770) 'on the _ _ day of _ _ A.D. 19_ _.' Although the sheriff was commanded to 'have the money before our said Circuit Court at the January term thereof, to be held on the 22nd day of March next,' the return attests the writ was not executed until 'the 23rd day of May, 1966, by having failed to collect any amount on this execution. Therefore, I am returning this writ as not satisfied.'

The third transcript item is a Magistrate Court order of December 13, 1965, which recites: 'Wherefore, it is considered ordered, adjudged and decreed by the Court that the Execution issued by the plaintiff in this case be quashed, the Court having no jurisdiction in the matter.' This, or a copy thereof, was filed December 14, 1965, with the Circuit Clerk.

Under date of December 18, 1965 (according to the fourth transcript entry), defendants' counsel subscribed and swore to the truth and correctness of a Motion to Quash Execution 'heretofore issued in this cause.' The motion, filed in the Circuit Court December 21, 1965, averred execution should be quashed because the judgment on which it was based 'is void for lack of jurisdiction of the subject matter in that the subject matter purports to be exempt property of surviving spouse; that the Estate of Plaintiff's decedent spouse was probated * * * and that Plaintiff did not file Application for Exempt Property in the Probate Court * * * in accordance with Section 474.250 V.A.M.S. * * * and that jurisdiction of the alleged subject matter was and still is in the Probate Court * * * instead of the Magistrate Court.' No evidence was offered on the motion which was overruled May 10, 1966. When defendants' motion for new trial or for judgment was overruled, this appeal followed. Our chances at comprehension were abbreviated when this appeal was submitted to us without oral argument and miscalculations expressed in the briefs do not mollify our mystification.

The lone point contained in appellants' brief is the abstract declaration 'The Circuit Court erred in overruling defendant's motion to quash, lack of jurisdiction appearing on the face of the record.' Contrary to V.A.M.R. 83.05(e) the brief does not direct us to that portion of 'the face of the record' which supposedly shows lack of jurisdiction, it does not advise us whether it is the Magistrate Court, the Circuit Court, or perhaps both courts that lack jurisdiction and it does not describe the particular kind of jurisdiction allegedly lacking. In searching further in the brief, appellants' argument seems to the effect the Magistrate's December 13, 1965, order rendered the Magistrate's August 19, 1963, judgment void.

'Jurisdiction' is a loosely employed term but generally it is of three kinds, i.e., of the subject-matter, of the person, and to render the particular order or judgment which was given. Crockett Oil Company v. Effie, Mo.App., 374 S.W.2d 154, 157; City of Phoenix v. Greer, 43 Ariz. 214, 29 P.2d 1062, 1064(4). Jurisdiction of the subject-matter relates to a court's power over the general class of cases to which the particular case belongs and does not mean simple jurisdiction of that certain issue or case then before the court. Musick v. Kansas City, S. & M. Ry. Co., 114 Mo. 309, 21 S.W. 491, 492; St. Louis & S.F. Ry. Co. v. Lowder, 138 Mo. 533, 39 S.W. 799, 800; 23 A Words and Phrases, Jurisdiction of the Subject-Matter, pp. 215--229. As we are not told the cause of action which is involved, we have no way of knowing if the courts had jurisdiction of the subject-matter. Averments contained in appellants' motions and brief do not prove themselves. School Dist. No 80 of Christian County v. School Dist. No. R--1 of Christian County, Mo.App., 258 S.W.2d 258, 259(1); E. C. Robinson Lumber Company v. Lowrey, Mo.App., 276 S.W.2d 636, 644(21). Consequently, we cannot accept appellants' claim 'the face of the record' reveals lack of jurisdiction or that the Magistrate Court lacked jurisdiction of the subject-matter, especially when they technically mean 'jurisdiction over things,' i.e., jurisdiction over the particular property or chattels (whatever it or they may be) that are involved in the cause of action (whatever it may be). Restatement, Conflict of Laws, § 98, Comment a, p. 150.

The December 13, 1965, order of the Magistrate Court does not declare the August 19, 1963, judgment to be void. The order simply quashed 'the execution issued by the plaintiff' because the court 'had no jurisdiction in the matter.' Using the term as an all-inclusive expression, as is common practice, a...