Hauser v. Burge

• Decision Date: 03 October 1938
• Docket Number: 19201
• Citation: 121 S.W.2d 314
• Parties: Samuel Hauser, Plaintiff in error, v. A. Burge, Defendant in error
• Court: Kansas Court of Appeals

121 S.W.2d 314

Samuel Hauser, Plaintiff in error, v. A. Burge, Defendant in error

No. 19201

Court of Appeals of Missouri, Kansas City

October 3, 1938

WRIT OF ERROR TO BUCHANAN CIRCUIT COURT.

Floyd L. Sperry, C. Campbell, C., concurs. All concur.

OPINION

Floyd L. Sperry

Plaintiff in error will be referred to as plaintiff, and defendant in error will be known as defendant.

Plaintiff lived in the State of Kansas and instituted a replevin suit in the court of justice of the peace McDonald, in Buchanan county, Missouri, on October 14, 1933. The subject matter of the suit was a 1924 Ford automobile, alleged to be in the possession of one A. Burge, alias A. Webster. A writ issued and under said writ the constable took possession of said automobile, which was found in the possession of defendant and delivered the same to plaintiff in Kansas. On October 26, 1933 plaintiff's agent appeared in justice court, and defendant and his attorney also appeared. The records of the justice court disclosed the following entry:

"October 26, 1933, the above entitled case is dismissed by the court for the reason that the summons issued herein had been issued against A. Webster as the defendant as the one said to be in possession of the car instead of A. Burge in whose possession it was found." (Italics ours).

Neither party took any appeal from the order of dismissal, nor did either take any further action in regard to this case; but plaintiff, by his agent, thereafter and on the same day, instituted another replevin suit against defendant, in the court of the same justice of the peace, praying for possession of the same automobile, and for damages. Writ and summons were issued on October 26, 1933, and the constable's return shows service of "within order and summons" on defendant October 26, 1933. On November 6, 1933, defendant, by his agent, filed application for change of venue, which was granted and the case was transferred to the court of Justice Hessler; and on December 27, 1933, plaintiff filed application for change of venue, which was granted, and the venue was changed to the court of Justice Homan.

On June 4, 1934, defendant, "by T.B.Burge, his guardian ad litem," filed answer and counterclaim, alleging therein that he was the owner of and entitled to possession of the car, and:

".... that at the time of the filing of said complaint the plaintiff, San Hauser, was in possession of said Ford Coupe and had the same at his home in the State of Kansas, having wrongfully, illegally, wantonly and maliciously without process of law and without any right whatsoever taken the same away from this defendant and at the time of the filing of this suit swore that this defendant was in possession of said car and was wrongfully detaining it from him, the said Sam Hauser, when he knew at the very time he was in possession wrongfully and illegally and had the same in the State of Kansas. And this suit was filed in malice and frivilous and harassing and outrage perpetrating upon this defendant by the said Sam Hauser in the taking of said automobile long before the filing of this suit, wrongfully, illegally, wantonly and maliciously damaged and injured this defendant in the value of said automobile in the sum of one hundred dollars ($ 100.00) and for the wrongful taking of same and the detention of same and depriving this defendant of the use of said automobile, he was damaged in the further sum of one hundred dollars ($ 100.00) and for the malicious, wilful intentional, wrongful and illegal taking of this defendant's said property away from him taking it to the State of Kansas, the defendant is entitled to exemplary or punitive damages for which he asks the sum of one hundred dollars ($ 100.00) or a total of actual and exemplary damages in the sum of three hundred dollars ($ 300.00) for which he asks judgment against the plaintiff."

Thereafter, on August 24, 1934, defendant, by his attorneys, filed suggestion of his minority and prayed appointment of T.B.Burge as guardian ad litem, and stated therein that T.B.Burge appeared and agreed to accept said appointment. The transcript does not show appointment of a guardian ad litem; but recites that, on a trial had on November 16, 1934, the complaint and counterclaim were dismissed. Plaintiff took no appeal from the dismissal of the suit, but defendant appealed to the circuit court on the counterclaim, where plaintiff moved, offered evidence on said motion, and urged dismissal of the appeal on the grounds that the justice court had no jurisdiction of the subject matter of the suit and that the circuit court, therefore, acquired no jurisdiction of the counterclaim on appeal; and also offered a general demurrer at the close of all the evidence.

From a judgment for defendant on the counterclaim, plaintiff appealed to this court, but later dismissed said appeal because of a defective record. This case is here on a writ of error, timely sued out by plaintiff. Defendant moved to dismiss the appeal because the statement filed by appellant is not concise and clear, and because the brief is inartificially drawn and poorly arranged; and in this action he renews said motion as to the writ of error. The motion to dismiss, or quash, was taken with the case. While the statement and the arrangement of the brief is not exactly a model, yet we believe...