G. H. Kursar, D. O., Inc. v. Fleischer
| Decision Date | 15 July 1980 |
| Docket Number | 41909,Nos. 41885,s. 41885 |
| Parties | G. H. KURSAR, D. O., INC., a Professional Corporation, Appellant-Respondent, v. Alfred J. FLEISCHER, Respondent-Appellant, v. MARK TWAIN NORTHLAND BANK, Defendant. |
| Court | Missouri Court of Appeals |
Francis X. Duda, St. Louis, for plaintiff-appellant.
Leo V. Garvin, Jr., Clayton, for defendant-appellant.
Appeal by both parties from a decision of the St. Louis Circuit Court in a suit to set aside a judgment entered in magistrate court. The circuit court set aside a part of the judgment but let the rest of the judgment stand.
In May of 1978, Fleischer (hereinafter referred to as "lessor") filed a petition in magistrate court against G. H. Kursar, D.O., Inc. (hereinafter referred to as "lessee"). The petition alleged that The petition further alleged that lessee had breached the lease in three respects: (1) by failing to pay rent in July of 1976, (2) by failing to pay excise taxes for 1976 and 1977, and (3) by failing to pay the cost of unspecified leasehold improvements made by lessor.
Lessee was served with the magistrate court summons which indicated that the return date was June 9, 1978. On June 6, lessee's counsel filed an answer in the suit denying all the allegations made in the petition, except those regarding lessee's corporate status; however, he made no request for a continuance. On June 9, lessee did not appear in magistrate court, either personally or through counsel. Lessor did appear, and the magistrate entered a "default judgment" against lessee for the full amount prayed for. On July 30, eleven days after the time had passed for direct appeal of the magistrate court judgment under section 512.190, RSMo 1969, lessee's counsel learned of the entry of the judgment. Lessee's subsequent motion to set aside the judgment was denied by the magistrate.
Lessee thereafter filed a petition in circuit court to set aside the magistrate court judgment. After hearing the matter, the court set aside the portion of the judgment regarding the leasehold improvements (which the addendum to the lease dealt with 1 ), but let stand the remainder of the judgment. Both parties then appealed to this court.
On appeal, lessee contends that the entire magistrate court judgment should have been set aside because (1) lessee was not in default when the "default judgment" was entered, and (2) the magistrate court did not have jurisdiction over the case because the instrument being sued on was not before the magistrate. Lessor contends that none of the magistrate court judgment should have been set aside because lessee's appeal was a "collateral" attack on the judgment and therefore improper.
We turn first to lessee's arguments. Lessee contends that the entry of a default judgment was improper because there was no default. In circuit courts, interlocutory judgments on default are ordinarily made for failure to file an answer, Rule 74.045; to grant one after an answer had been filed would usually be improper. Meyerhardt v. Fredman, 131 S.W.2d 916 (Mo.App.1939); Armstrong v. Elrick, 177 Mo.App. 640, 160 S.W. 1019 (1913). Lessee contends that, because he had filed an answer in magistrate court prior to the return date, he was not in default, and the granting of a default judgment therefore was improper. 2
We believe that lessee overlooks the difference between magistrate and circuit court procedures. In circuit court, an answer must be filed, while in magistrate court, formal pleadings are not required, section 517.050, RSMo 1969. Therefore, in magistrate court, the filing of an answer has no effect on the trial date because the trial date is already set as the date named in the summons. Section 517.610, RSMo 1969 provides that "every suit shall be tried on the day named in the process, when the same has been duly served or on the day to which it shall have been adjourned, unless it be continued or otherwise disposed of by the magistrate." The magistrate court is a court of limited jurisdiction and a continuance of the case to a date not certain would deprive the magistrate of his jurisdiction. State ex rel. Salter v. Barry, 486 S.W.2d 47 (Mo.App.1972).
Although the magistrate court judgment is termed by the statute a "judgment . . . by default," we do not believe the judgment was a default judgment as that term is used in the circuit courts. The judgment was not analogous to one entered simply for failure to answer, for no answer was required here. Rather, the analogy is to a circuit court case in which the pleadings are filed, the issues are made up, the case comes on for trial, defendant fails to appear, plaintiff presents evidence, and the court enters judgment for the plaintiff. A long line of Missouri cases have held that such judgments are judgments on the merits, not default judgments. Donnell v. Vigus Quarries, Inc., 457 S.W.2d 249 (Mo.App.1970); State ex rel. Jones v. Reagan, 382 S.W.2d 426 (Mo.App.1964); Meyerhardt v. Fredman, 131 S.W.2d 916 (Mo.App.1939); National City Bank v. Pattiz, 26 S.W.2d 815 (Mo.App.1930); Schopp v. Continental Underwriters' Co., 284 S.W. 808 (Mo.App.1926). For an excellent discussion of the various types of judgments referred to in Missouri as "default judgments," see Caldwell Paint Mfg. Co. v. LeBeau, 591 S.W.2d 1, 4-5 (Mo.App.1979).
Lessee's second contention involves the fact that the addendum to the lease was not attached to the petition with the rest of the lease nor filed with the court before judgment. 3 Lessee therefore argues that the document being sued on was not before the magistrate court, and that the court did not have jurisdiction to enter judgment against lessee. This argument is based in part upon section 517.050, RSMo 1969 which states: (B)efore any process shall issue in any such (magistrate court) suit, the plaintiff shall file with the clerk of the magistrate court the instrument sued on, or a verified copy thereof, or a statement of the account, or of facts constituting the claim upon which the suit is founded . . . ." Thus, for the magistrate to have jurisdiction over the case, one of these documents must be filed with the court. It is when none of these alternatives are complied with that the court does not acquire jurisdiction, Pfitzinger v. Johnson, 177 S.W.2d 713 (Mo.App.1944). The failure to file the actual instrument sued upon is not a defect if a sufficient statement of account or of facts constituting the claim is filed, Johnson v. Kramer, 276 S.W.2d 628 (Mo.App.1955).
Here, however, the instrument which the first two claims were based on ...
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