Gideon v. Hughes

• Decision Date: 06 April 1886
• Citation: 21 Mo.App. 528
• Parties: MARY L. GIDEON ET AL., Respondents, v. W. G. HUGHES ET AL., Appellants.
• Court: Missouri Court of Appeals

21 Mo.App. 528

MARY L. GIDEON ET AL., Respondents,

v.W. G. HUGHES ET AL., Appellants.

St. Louis Court of Appeals, Missouri.

Apr. 6, 1886.

APPEAL from the Dunklin County Circuit Court, JOHN G. WEAR, Judge.

Motion overruled.

THOMPSON, J., delivered the opinion of the court on motion to set aside dismissal.

At the last term an order was entered in this court dismissing this suit in pursuance of a stipulation signed by the plaintiff John M. Gideon, for himself and wife, Mary L. Gideon, and by the defendants. Thereafter, a motion was made to set aside this order of dismissal; which motion was continued to the present term. The motion is supported by an affidavit to the substantial effect that the compromise and agreement to dismiss the suit was made by the plaintiff John M. Gideon, without the consent and in fraud of the rights of his wife and co-plaintiff Mary L. Gideon, who has since separated from him in consequence of cruelty, and brought an action against him for divorce. The motion presents some curious complications, and we have to deal with them in the best way we can.

There is no record proper in the case filed in this court--nothing but a bill of exceptions. This bill of exceptions contains the entry of judgment of the circuit court from which this appeal is taken. This entry of the judgment recites that the cause was instituted before a justice of the peace. But neither the transcript nor any of the papers in the proceeding before the justice are in this record. In such a case we have held that a justice of the peace, being an inferior court of special and limited jurisdiction whose jurisdiction is not entitled to any presumptions in its favor, but must affirmatively appear, unless it does appear on the record, we can not presume that it existed; that the jurisdiction of the circuit court, being derivative from that of the justice and dependent on it, can not be presumed to exist; and that in such a case we have no jurisdiction to adjudicate upon the merits, because we can not regard the judgment of the circuit court, from which the appeal is taken, as having been rendered in a proceeding of which that court had jurisdiction. McQuoid v. Lamb, 19 Mo. App. 153.

We, also, gather from the transcript and the affidavits that this is an action of forcible entry and detainer, or unlawful detainer, brought to recover certain premises which descended to the plaintiff Mrs. Gideon, on the death of her former husband, Mr. Sharp, in the year 1865, as her...