Feedler v. Schroeder

• Decision Date: 31 March 1875
• Citation: 59 Mo. 364
• Parties: JOSEPH FEEDLER, Defendant in Error, v. WILLIAM SCHROEDER, Plaintiff in Error.
• Court: Missouri Supreme Court

59 Mo. 364

JOSEPH FEEDLER, Defendant in Error,

v.WILLIAM SCHROEDER, Plaintiff in Error.

Supreme Court of Missouri.

March Term, 1875.

Matthew O'Reilly, for Plaintiff in Error.

I. Defendant's appearance for the purpose of taking a change of venue, did not cure defects in the service. Such an appearance was not a submission to the jurisdiction, nor was it a pleading to the merits, and the justice to whom the case was sent stood in the same position as the justice from whom the case came. (Wagn. Stat., 826, § 39.)

II. The judgment of the justice who tried the case, is erroneous in this, that it gives judgment for $70.00 damages, when the plaintiff asks only $35.00, and it does not show the actual value of the damages as found. (Wagn. Stat., 646, § 22.)

III. The Circuit Court erred in affirming the judgment of the justice. The case should have been tried de novo. (Wagn. Stat., 653, § 33.) It is only where there is a failure to perfect the appeal, that the judgment of the justice should be affirmed. (Wagn. Stat., 653, § 30; Lee vs. Roberts, 8 Mo., 506.)

IV. The judgment of the Circuit Court is excessive. The plaintiff asked $35 for his damages, and $35 for his monthly rents and profits, and the judgment is for $70 for his damages, and $70 for his monthly rents and profits, although there is no actual finding anywhere as to what was their actual value. (Moore vs. Dixon, 50 Mo., 424.)H. L. Gottschalk, for Defendant in Error.

I. The defendant having appeared before the justice of the peace and filed his affidavit for a change of venue, waived all errors in the process and service.

II. The Circuit Court had the right to affirm the judgment of the justice of the peace, as defendant failed to prosecute his appeal and refused to make his defense, if any he had. (Wagn. Stat., 653, § 30.)

III. The judgment for double the amount was proper. (Wagn. Stat., 645, § 22.) The case of Moore vs. Dixon (50 Mo. 424), is not parallel. In the case at bar plaintiff got judgment for the amount claimed, and that sum was doubled as a penalty, under the above section.

HOUGH, Judge, delivered the opinion of the court.

This was an action of forcible entry and detainer. Plaintiff claimed damages to the amount of $35, and alleged the monthly rents and profits to be $35. Service of process was made by a special constable appointed by the justice, by reading the writ, only, to the defendant. On the return day of the writ, the defendant made application for a change of venue, which was granted, and on the day set for trial of the cause, by the justice to whom the same had been transferred, a judgment by default was rendered against the defendant, for the recovery of the possession of the premises and for $70 damages, and for rents and profits, at the rate of $70 per month until restitution should be made. A motion to set this judgment aside was made and overruled by the justice, and defendant appealed to the Circuit Court, and there filed a motion to quash the return of the special constable, for the reason that it did not appear that he had been served with process, as required by statute, and limited his appearance to the purposes of that motion only. This motion was overruled, and when the case was called for trial, the defendant having failed to appear and prosecute his appeal, the judgment of the justice was affirmed. This judgment was affirmed at General Term and defendant brings the case here by writ of error.

It is argued here that the judgment for $70 damages, and $70 for monthly rents and profits, was erroneous, the amount claimed in the complaint, for each, being only $35, and that the court erred in refusing to quash the return and in affirming the judgment of the justice, instead of trying the case de novo.

There was no error in refusing to quash the return. Though the defendant may not have been in court by the service of process, his application for a change of venue was an appearance in the cause. His motion came too late.

The defendant having failed to prosecute his appeal in the Circuit Court, it was proper...