Hadley v. Bernero

• Decision Date: 15 December 1903
• Citation: 103 Mo. App. 549,78 S.W. 64
• Parties: HADLEY et al. v. BERNERO et al.
• Court: Missouri Court of Appeals

78 S.W. 64

103 Mo. App. 549

HADLEY et al. v. BERNERO et al.

Court of Appeals at St. Louis, Missouri.

December 15, 1903.

ERROR CORAM NOBIS—WHEN LIES—UNLAWFUL DETAINER—APPEAL.

1. Though an appeal from a judgment of a justice of the peace in an unlawful detainer action, given during term time of the court to which the appeal lies, must be taken within six days after judgment, on pain of the appeal being dismissed, if the court does not dismiss the appeal, but entertains the cause without question of its jurisdiction being raised, the judgment, if subject to attack, cannot be vacated by motion in the nature of a writ of error coram nobis, as that writ will not lie if the complaining party knew, or might have known, the fact complained of during the trial.

Appeal from St. Louis Circuit Court; D. D. Fisher, Judge.

Action by Leo G. Hadley and others against David Bernero and others. Judgment for plaintiffs. Motion in the nature of a writ of error coram nobis for vacation of the judgment. From an order overruling the motion, defendants appeal. Affirmed.

Vernon W. Knapp, for appellants. Thos. S. Meng, for respondents.

GOODE, J.

Plaintiffs, Leo G. Hadley and others, obtained judgment against the defendants, David Bernero and others, October 18, 1901, in an unlawful detainer action before a justice of the peace. Defendants appealed to the circuit court from the justice's judgment eight days after it was rendered. This appeal was not in time, as the circuit court was then in session, as now appears, and the statutes require the appeal from a justice's judgment in an unlawful detainer case to be taken in six days after judgment, if the court to which it lies is then holding a term. We suppose the fact that the appeal was too late was not called to the attention of the circuit court, and it may not have occurred to either of the parties. At all events, the cause was tried anew, with the result that judgment was again entered against the defendants, who again appealed, and the cause came to this court. Here a point was raised against the jurisdiction of the circuit court; but, as the record before us failed to show the justice's judgment was given during term time, we ruled the point against the defendants, because we had no right to take notice that a term of the circuit court was then running, but, in the absence of proof to the contrary, were bound to presume, in favor of the judgment, that said court found the facts existed which authorized it to hear and determine the cause, to wit, that the justice gave judgment while it was in vacation. The report of our decision will be found in 97 Mo. App. 314, 71 S. W. 451.

After the affirmance of the judgment the defendants filed a motion in the nature of a writ of error coram nobis in the circuit court to vacate its judgment, assigning as ground for the motion the tardy appeal from the magistrate's judgment. Proof was made that the circuit court was in fact sitting when the judgment was rendered; but the motion coram nobis was overruled, notwithstanding that proof, and defendants have again appealed to this court from the order overruling the motion.

An appeal from a judgment of a justice of the peace in an unlawful detainer action given during term time of the court to which the appeal lies must be taken within six days after judgment, on pain of the appeal being dismissed, as has been decided frequently. Robinson v. Walker, 45 Mo. 117; Bauer v. Cabanne, 11 Mo. App. 114; Hastings v. Hennessey, 52 Mo. App. 172. An appeal in other litigation will fail if allowed after the lapse of the statutory period for appealing. State v. Epperson, 4 Mo. 90; State v. Anderson, 84 Mo. 524; St. Louis v. Gunning Co., 138 Mo. 347, 39 S. W. 788. According to the opinions in those cases, the circuit court acquires no jurisdiction over the subject-matter of the action, if an appeal is too late—a statement that seems to be too broad, and to intend rather that the court appealed to obtains no jurisdiction of the particular case. Jurisdiction over the subject-matter of an action means the power to determine legal controversies of the same class or sort. Posthlewaite v. Ghiselin, 97 Mo. 420, 10 S. W. 482; Livingston v. Allen, 83 Mo. App. 294; Leonard v. Sparks, 117 Mo. 103, 22 S. W. 899, 38 Am. St. Rep. 646. Or, as is sometimes said, it is the power to adjudge concerning the general question involved; the power to act and adjudicate in litigation of the same nature, though, from lack of service on a party or some other deficiency, the power may not be exercisable in a pending case. Brown, Jurisdiction (2d Ed.) 3. Circuit courts have appellate jurisdiction, by force of the statutes, in unlawful detainer actions, and have, therefore, strictly speaking, jurisdiction over the subject-matter of any case of that kind. But they have no power to determine an action appealed from a magistrate's court, whether it be an unlawful detainer one or some other, unless the appeal was taken within the period fixed by the statutes. Robinson v. Walker and Bauer v. Cabanne, supra; Moore v. Minkler, 3 Mo. App. 596. And it is held that, if an appeal is taken out of time, consent of parties cannot give the circuit court power to decide. Moore v. Minkler, supra; Moulder & Simpson v. Anderson, 63 Mo. App. 39. If the subject-matter of the action falls within the concurrent original jurisdiction of the circuit court, and the parties appear and go to trial, according to established principles this ought to give the court power to determine the cause, even if the appeal was too late. Brown, Jurisdiction (2d Ed.) § 21a. But decisions of this state appear to have prescribed otherwise, and the remark is irrelevant, since the present action is one of which the circuit court has no original, but only appellate, jurisdiction. The validity of the appeal hinged on a fact which it was incumbent on the circuit court either to find from evidence or notice judicially before proceeding further. When a tribunal is clothed with jurisdiction of the class of actions to which a controversy belongs, and its right to adjudicate the controversy depends on certain facts which it must ascertain, and it makes an express finding on them, that decision becomes as much res judicata as the decision of any other issue, and the parties are precluded from reopening it afterwards, except by appeal or writ of error. They are precluded, not because jurisdiction of the subject-matter can be waived or conferred by consent, but because it is conferred by law, and the facts on which it may be exercised have been found to exist in the particular controversy. If the decision that they existed was erroneous, the remedy is the same as when other erroneous decisions occur—review by an appellate court, to which the cause may be carried and the decision reversed, if the evidence on which it was given is preserved in the record in a way to enable the upper court to pass on it. Black, Judgments, § 300; Howard v. State, 58 Ark. 229, 24 S. W. 8; Williams v. Edwards, 34 N. C. 118; Hawkins v. Bowie, 9 Gill & J. 428. So far as this record discloses, there was no affirmative finding by the circuit court that the appeal from the magistrate's court was timely. Still, it retained and decided the case, thereby assuming jurisdiction, and must be presumed to have done so on facts found which gave it the right. Clary v. Hoagland, 6 Cal. 685; State v. Waupaca Bank, 20 Wis. 640; Thornton v. Baker, 15 R. I. 553, 10 Atl. 617, 2 Am. St. Rep. 925; Vanfleet, Coll. Attack, § 62, and citations. It is at least questionable if the whole matter of its jurisdiction is not res judicata, and no longer open to attack in any mode, though the decisions as to what is a direct attack on a judgment, and when it may be made, are inharmonious. Morrill v. Morrill, 23 Am. St. Rep., note on page 104 et seq. There would be no doubt that it is res judicata if the circuit court had made an affirmative finding in favor of its jurisdiction. Courts are constantly called on to determine preliminary facts on which hinge their power to decide litigation, and their determinations are constantly reviewed by appellate tribunals when the evidence essential to a review is in the record. Hembree v. Campbell, 8 Mo. 572; Peery v. Harper, 42 Mo. 131; Brackett v. Brackett, 61 Mo. 221; Smith v. Simpson, 80 Mo. 634; Roberts v. State Ins. Co., 26 Mo. App. 92. The decisions on which defendants' counsel relies to show the appeal of the present action to the circuit court was abortive are in point on this proposition. We apprehend that, if the finding of a jurisdictional fact is based on contradictory testimony, the lower court would have to be sustained, because it weighs testimony, and upper courts do not. But if the fact was found against all the testimony, the error in exercising jurisdiction could be corrected by a reversal of the judgment. When the record of a court of general jurisdiction in a cause wherein it proceeds according to the course of the common law is silent as to jurisdictional facts, or contains no finding, the presumption prevails that the court had jurisdiction. 1 Herman, Estoppel, §§ 356-367. Or, as is sometimes said, nothing shall be intended to be out of the jurisdiction of a superior court but what specially appears to be. Huxley v. Harrold, 62 Mo. 516; Gates v. Tusten, 89 Mo. 13, 14 S. W. 827; Schad v. Sharp, 95 Mo. 573, 8 S. W. 549; St. Louis v. Lanigan, 97 Mo. 175, 10 S. W. 475; McClanahan v. West, 100 Mo. 309, 13 S. W. 674; State v. Baty, 166 Mo. 561, 66 S. W. 428. In the case last cited a record entry needed to show the jurisdiction of the circuit court was missing; but the Supreme Court said that every presumption would be indulged in favor of the action of the court, and that it proceeded by right, and not by wrong; further, that if the record was silent about a matter necessary to confer jurisdiction, or more properly to cause it to attach in the particular instance, the existence of such...