First State Bank of Kansas City, Kan. v. Goodrich

• Decision Date: 18 November 1946
• Citation: 198 S.W.2d 677,239 Mo.App. 1033
• Parties: The First State Bank of Kansas City, Kansas, a Corporation, Respondent, v. Fred W. Goodrich, Appellant
• Court: Kansas Court of Appeals

198 S.W.2d 677

239 Mo.App. 1033

The First State Bank of Kansas City, Kansas, a Corporation, Respondent, v. Fred W. Goodrich, Appellant

Court of Appeals of Missouri, Kansas City

November 18, 1946

Appeal from Circuit Court of Jackson County; Hon. Brown Harris Judge.

Affirmed.

J K. Owens for appellant.

The Court is without jurisdiction to hear, entertain and render judgment when the original note sued on was not filed before final judgment. Section 2571 of the Revised Statutes of Missouri, 1939; Phenix Insurance Company v. T. S Foster, 56 Mo.App. 197; Gideon v. Hughes, 21 Mo.App. 528; Mansur v. Linney, 162 Mo.App. l. c. 266; State ex rel. Alisky v. Bird, 63 S.W.2d 817; Lawyer Cooperative Publishing Company v. Piatt, 128 S.W.2d 1072; Hudson v. Wright, 204 Mo. 212; Olin v. Zeigler, 46 Mo.App. 193.

Ira B. Burns for respondent.

The Court had jurisdiction to hear and try this cause and the judgment rendered is valid and enforceable. Mansur v. Linney, 144 S.W. 872, 162 Mo.App. 260; Standard Scale and Foundry v. K. C. Furnace Co., 88 S.W. 108, 113 Mo.App. 566; Sanders v. Selleck, 147 S.W. 134, l. c. 135, 165 Mo.App. 392; Midwest Insurance Corp. v. Schroeder, 185 S.W.2d 660; Groomer v. McMillan, 143 Mo.App. 612, 128 S.W. 285; C. G. Conn v. Orr et al., 150 Mo.App. 705, 131 S.W. 765; Norton v. Allen, 4 S.W.2d 840; Section 2571, Revised Statutes of Missouri, 1939.

OPINION

Dew, J.

Respondent, a banking corporation in Kansas, brought suit in a court of a Justice of the Peace, filing a petition based on a promissory note of appellant, with a verified copy of the note attached. After personal service and subsequent continuances, judgment was taken by respondent by default. Appellant appealed to the Circuit Court, where, on motion of respondent, the judgment was affirmed for $ 752, with interest at 10% from August 13, 1945. Appellant moved for a new trial, which motion was overruled. Appellant appealed from the judgment of the Circuit Court. Appellant contends that neither of the courts below had jurisdiction over the subject matter because the note sued on was not filed before final judgment.

A statement was filed by respondent in the Justice Court which alleged the execution and delivery to the respondent of a promissory note by appellant dated and delivered February 20, 1943, in the principal sum of $ 615.72, bearing interest from date at 10% per annum; alleged that said rate of interest was a legal rate in Kansas; that a copy of said note, marked and referred to as Exhibit "A" and made a part of the statement, was attached thereto; alleged certain itemized credits of principal and interest thereon, leaving $ 612.09 balance due on said note, plus interest from June 28, 1943, at 10% per annum. The prayer was for $ 612.09, with interest at 10% per annum from June 28, 1943, with costs. Attached to the statement was a verified copy of a note marked Exhibit "A", which answers the description contained in the statement, and bearing endorsed credits itemized, as alleged. The original note referred to was never filed. After personal service of summons, two continuances of the case were entered by "agreement." On the last date set for trial the defendant defaulted and the judgment for $ 752.62 and interest as aforesaid, was entered in respondent's favor.

On appeal to the Circuit Court by the defendant, the plaintiff (respondent) filed a motion to affirm for failure of notice of appeal within the statutory period. This motion was sustained and judgment was rendered by the Circuit Court for the amount, with interest and costs, as stated.

Appellant's only point made here is that the Justice of the Peace (and consequently the Circuit Court) was without jurisdiction over the subject matter because the action was based on a written instrument (the note) and the original instrument was never filed before final judgment, citing Section 2571, Revised Statutes Missouri, 1939.

Section 2571 provides, so far as here concerned, that no formal pleadings are required in a Justice Court, but that before the issuance of process, the plaintiff shall file with the Justice "the instrument sued on, or a statement of the account, or of the facts constituting the cause of action upon which the suit is founded." Section 2572 provides that when a suit in the Justice Court is founded on an instrument of writing purporting to have been executed by the defendant, and which debt or damages claimed may be ascertained by such instrument, the same shall be filed with the Justice, and no other statement or pleading shall be required. It further provides, among other things, that no suit shall be dismissed or discontinued for want of any such statement of cause of action, or for any defect or insufficiency thereof if the plaintiff shall file the instrument or account, or a sufficient statement, before the jury is sworn, or the trial commenced, or when required by the...