Gilstrap v. Felts

• Decision Date: 31 August 1872
• Citation: 50 Mo. 428
• Parties: JACOB GILSTRAP, Plaintiff in Error, v. KINDRED S. FELTS, Defendant in Error.
• Court: Missouri Supreme Court

50 Mo. 428

JACOB GILSTRAP, Plaintiff in Error,

v.KINDRED S. FELTS, Defendant in Error.

Supreme Court of Missouri.

August Term, 1872.

Error to Sullivan Circuit Court.

A. W. Mullins, for plaintiff in error.

I. The orders and proceedings of the Circuit Court of Sullivan county, before the transcript of the record had been forwarded to and filed by the clerk of that court, were unauthorized, extrajudicial and mere nullities, because the court did not have jurisdiction of the case. (Wagn. Stat. 1356-7, § § 7, 8.) The order of the court, therefore, arresting the judgment rendered at the September term, 1869, could not in anywise impair or invalidate the prior proceedings in the case had in the Circuit Courts of Adair and Schuyler counties; and consequently the interlocutory judgment rendered by the Adair Circuit Court at the October term, 1866, remained in force. The court merely put a stop to its own proceedings. (Mannhardt v. Soderstrom, 1 Binn. 138, 142; Valerine v. Thompson, 7 N. Y. 581; Lindell v. Hann. & St. Jo. R.R. Co., 36 Mo. 545.)

II. The court erred in permitting the defendant to file his answer in the case while the interlocutory judgment remained in force, and plaintiff's motion to strike out the answer should have been sustained. (Hickman v. Barnes, 1 Mo. 156, 159; Wagn. Stat. 1052, §§ 4, 5.)

III. Had the Sullivan Circuit Court been fully possessed of the cause, the order arresting the judgment would not of itself have set aside the interlocutory judgment. By arrest of judgment is meant “the refusal of the court to enter a judgment for some cause apparent upon the record.” (2 Gra. & Wat. New Trials, 325; Bouv. Law Dic. 726.) The motion reaches only defects and insufficiencies in the record not cured by the verdict.

G. D. Burgess, for defendant in error.

The court below committed no error in permitting defendant to answer after the motion in arrest of judgment had been sustained. Every reasonable intendment will be made in support of the judgment and ruling of the court below, and the presumption is that the court below sustained the motion on the ground that the petition does not state facts sufficient to constitute a cause of action. The motion, therefore, reached back to the petition, and no exceptions were saved to the ruling of the court on this point. (Morgan v. Taggart, 1 Mo. 403; Collins v. Bowmer, 2 Mo. 195; Stewart v. Small, 5 Mo. 525; Vaughn v. Montgomery, id. 529; Dodson v. Johnson, 6 Mo. 599; Small v. Hempstead, 7 Mo. 373; Bouv. Law Dic. 726.)BLISS, Judge, delivered the opinion of the court.

This suit was for damages for seizing and converting personal property, and was instituted in Adair county, and upon defendant's default interlocutory judgment was then entered. At the next term he sought to have it set aside, and, failing, took a change of venue to Schuyler county; and after a jury trial, wherein the jury disagreed, took another change to Sullivan. He again sought to have the default set aside, but failed. A trial was then had upon the assessment of damages, and the plaintiff recovered some $900. In removing the cause from Schuyler county the clerk had sent no transcript of the proceedings, and the trial seems to have been had upon the original papers. The defendant thereupon moved in arrest, and his motion was sustained upon the ground that the Sullivan court had no jurisdiction. The court thereupon made an order remitting the papers back to Schuyler and ordering a transcript, which was returned; and the defendant was permitted, without setting aside the interlocutory judgment, to answer to the merits. Upon the new trial the defendant recovered judgment, to reverse which the plaintiffs bring error.

The judgment upon the first verdict was arrested because the trial had been had upon the original papers instead of a transcript from the county from which the venue had been changed. When there is a change of venue taken, the statute requires that the clerk shall forward a transcript of the record proper, together with the original papers not forming a part of it, and at the expense of the party applying for the change. (Wagn. Stat. 1356-7, §§ 7-9.) No transcript was forwarded in this case, but the trial appears to have been had upon the original pleadings; the defendant, who had procured the change of venue, in effect consenting to such trial. After a verdict against him he perceives the irregularity and objects to a judgment. But he is too late. The irregularity, if it existed, was his own, and he cannot take advantage of it. But there was no such irregularity in fact as could have injured either party. The statute makes it the duty of the clerk to preserve upon his files the original pleadings and forward a transcript of them. This is his duty, and if any one suffers from its non-performance he is answerable. But if, instead of forwarding copies, he shall send the originals, it does not follow...