Harding v. City of Carthage

• Decision Date: 01 February 1904
• Parties: HARDING et al. v. CITY OF CARTHAGE.
• Court: Missouri Court of Appeals

78 S.W. 654

105 Mo. App. 16

HARDING et al. v. CITY OF CARTHAGE.

Court of Appeals at Kansas City, Missouri.

February 1, 1904.

INJUNCTION—TIME OF TRIAL—WAIVER OF PROCESS.

1. Rev. St. 1889, § 5505, relative to injunctions, provides that, after answer is filed, motion may be made at any time in term to dissolve the injunction, and upon such motion the parties may introduce testimony, etc. Section 2013, relative to suits in general, provides that they may be instituted by filing a petition and the voluntary appearance of the adverse party, or by the filing of a petition and suing out process thereon. Section 2042, relating only to cases in which defendant has been served with process, makes actions triable at the return term. Held, that the court had power to order an injunction suit, in which no temporary injunction had been asked, and in which defendant voluntarily appeared at the term preceding the return term, to be tried at the term of appearance.

Appeal from Circuit Court, Jasper County; J. D. Perkins, Judge.

Suit by H. H. Harding and another against the city of Carthage. From an order of dismissal, plaintiffs appeal. Affirmed.

Howard Gray and Thomas & Hackney, for appellants. McReynolds & Halliburton and H. J. Green, City Atty., for respondent.

BROADDUS, J.

This is a proceeding commenced by appellants against respondent in the Jasper county circuit court for the purpose of enjoining and restraining respondent from issuing certain bonds theretofore voted by its citizens to construct an electric light plant, and to prevent the erection of such plant. The petition was filed December 23, 1898, while the December term of court was in session. A summons issued the same day, returnable to the June term, 1899, of the said circuit court. No temporary restraining order was asked for or obtained. The summons was served December 24, 1898. On January 3, 1899, defendant entered its appearance in said cause, filed an answer, and filed a motion asking the court to set said cause down for trial during the December term of court, and duly gave appellants notice of the filing of said answer and motion. And on January 28, 1899, the court sustained said motion, and set the case down for trial on February 6, 1899. Appellants on February 4, 1899, filed their motion to set aside said order, which motion was by the court overruled. On February 6, 1899, said cause coming on for hearing, appellants failed and refused to appear and prosecute their case, and the court dismissed the case for failure to prosecute the same. On the same day appellants filed their motion to set aside the order setting the case for trial, and to set aside the order overruling appellants' previous motion to set aside said order, and to set aside the order dismissing the case for failure to prosecute the case, which motion was by the court overruled, and appellants appealed to this court.

Appellants have printed the record substantially in full, and the only question in the case is the authority of the circuit judge to set the case down for trial at the December term of said court. The Jasper county circuit court holds four terms a year, commencing on the first Monday in March, June, September, and December, respectively. The March and September terms are held in Carthage, and the June and December terms in Joplin. Chapter 84, Rev. St. 1889, entitled "Injunctions," provides the manner of obtaining injunctions, and how they shall be heard and determined, but it only provides for their hearing in cases where a temporary injunction has been obtained. Section 5505, Id., is as follows: "After the answer is filed, a motion may be made at any time in term to dissolve the injunction, and upon such motion the parties may introduce testimony to support the petition and answer, and the court shall decide the motion upon the weight of the testimony without being bound to take the answer as true." Such injunctions may be granted by the circuit court or judge in vacation, and in certain cases by the probate court or the judge thereof in vacation, or by the county court or two judges thereof. Sections 5488, 5489. But the chapter in question does not undertake to regulate the practice for hearing in cases where there has been no temporary injunction. It then necessarily follows that the hearing must be as provided by the general provisions...