Hadley v. Bernero
| Citation | 78 S.W. 64,103 Mo.App. 549 |
| Parties | HADLEY et al., Respondents, v. BERNERO et al., Appellants |
| Decision Date | 15 December 1903 |
| Court | Court of Appeal of Missouri (US) |
Appeal from St. Louis City Circuit Court.--Hon. D. D. Fisher, Judge.
Judgment affirmed.
Vernon W. Knapp for appellant.
(1) A transcript of all the proceedings had before the justice together with all documents filed with him, in this case, on or before October 24, 1901, would fail to show the filing of any affidavit for appeal or any recognizance or that any order allowing appeal had been made by the justice. There was, therefore, no appeal ever allowed in this case and the judgment of the justice of the peace became, at the expiration of the twenty-fourth day of October, 1901, final and conclusive and the cause of action became res adjudicata. The circuit court therefore acquired no jurisdiction of the case, all of its proceedings are without jurisdiction and its judgment a nullity. Bernicker v. Miller, 37 Mo. 498; Patchin v. Bonsack, 52 Mo. 431; Semple & Birge Mfg. Co. v. Thomas, 10 Mo.App. 459; Bauer v Cabanne, 11 Mo.App. 114; Robinson v. Walker, 45 Mo. 117; Hastings v. Hennessey, 52 Mo.App. 172; St. Louis v. Gunning Co., 138 Mo. 355. (2) The appearance in the circuit court of all the parties to the case and their taking part in the proceedings does not confer jurisdiction upon the court, nor is there any waiver thereby and the doctrine of estoppel does not apply. Moore v Minkler, 3 Mo.App. 596; Moulder & Simpson v. Anderson, 63 Mo.App. 39; Enc. of Pl. and Prac., vols. 12, p. 191, 15, p. 216; Henderson v. Henderson, 55 Mo. 534; Graves v. McHugh, 58 Mo. 499; Davis v. Jacksonville, 126 Mo. 69; Bray v. Marshall, 66 Mo. 122; Encl. of Pl. and Prac., vol. 12, pp. 188, 189. (3) The court has no power, as a general rule after the term at which a final judgment has been rendered to vacate the judgment; but it has that power upon proper application upon sufficient cause shown, as for instance, where the judgment is void or irregular. Harbor v. Pacific Railroad Co., 32 Mo. 423; Stacker v. Cooper Circuit Court, 25 Mo. 401; Smith v. Best, 42 Mo. 185. (4) A judgment which is void for want of jurisdiction, may be vacated or stricken off on motion and a direct action to have such judgment annulled and set aside is a recognized procedure. Where it is sought to set aside a judgment on the ground of irregularity, a motion in the cause, and not a new action, is the appropriate remedy. Encl. of Pl. and Pr., vol. 15, pp. 237 and 258; Powell v. Gott, 13 Mo. 458; Randall v. Wilson, 24 Mo. 76; Townsend v. Cox, 45 Mo. 401; Droning v. Still, 43 Mo. 309; State v. Scott, 104 Mo. 26; Hirsch v. Weisberger, 44 Mo.App. 506. (5) A court may at any time vacate a judgment which is void for want of jurisdiction and the right to have such judgment vacated is not lost by delay regardless of whether or not the time of application to set aside judgment for irregularity is limited by statute. Am. and Eng. Ency. of Law, vol. 17, pp. 842 and 1046; Jones v. Pharis, 59 Mo.App. 254; State v. St. Louis, 1 Mo.App. 503; Harness v. Cravens, 126 Mo. 233; Fisher v. Siekman, 125 Mo. 165.
Thomas S. Meng for respondents.
(1) Appellant, having once appealed from the judgment, and the same having been affirmed, can not again appeal from the same judgment. Schnaeder Brewing Co. v. Levvie, 41 Mo.App. 584. (2) Appellant's motion to vacate and set aside the judgment, not being set out in the bill of exceptions, there is nothing before this court for review. Ryan v. Growney, 125 Mo. 474; Loudon v. King, 22 Mo. 336. (3) Even if the circuit court had power to set aside the judgment, it was not bound to do so. Defendants having invoked the jurisdiction of the circuit court on their appeal, litigated the case on the merits, and remained in possession of the property under their appeal bond, can not now claim as a matter of right, that the judgment must be set aside, even though it may be void. Thornton v. Baker, 15 R. I. 553, p. 557; Harbaugh v. Albertson, 102 Ind. 69; Reyverston v. Central Lumber Co., 69 Ill.App. 131; Packer v. Roberts, 140 Ill. 9; Bigelow on Estoppel (5 Ed.), p. 517; Hines v. Mullens, 25 Ga. 696; Lovelady v. Davis, 33 Miss. 577, p. 578; Norton v. Miller, 25 Ark. 108, p. 112; King v. Penn, 43 Ohio 57; McClannahan v. West, 100 Mo. 309, p. 322; Herweek v. Koken Barber Supply Co., 61 Mo.App. 454, p. 456.
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.
After the affirmance of the judgment, the defendant 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; Livingston v. Allen, 83 Mo.App. 294; Leonard v. Sparks, 117 Mo. 103, 22 S.W. 899. 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 (2 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, Bauer v. Cabanne, supra; Moore v. Winkler, 3 Mo.App. 596. And it is held that if an appeal is taken out of time, consent of parties can not give the circuit court power to decide. Moore v. Minkler, supra; Moulder & Simpson v. Anderson, 63 Mo.App. 34. 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 (2 Ed.), sec. 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 had 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 re-opening 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...
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