Hessey v. Heitkamp
| Decision Date | 04 May 1880 |
| Citation | 9 Mo.App. 36 |
| Parties | W. M. HESSEY, Respondent, v. F. HEITKAMP, Appellant. |
| Court | Missouri Court of Appeals |
In a proceeding under a landlord's summons, where the jurisdictional fact that the justice resides in the ward in which the property lies, or in an adjoining ward, does not appear, the judgment is void, the Circuit Court acquires no jurisdiction on appeal, and the appeal-bond is void.
APPEAL from the St. Louis Circuit Court, ADAMS, J.
Reversed and dismissed.
L. GOTTSCHALK, for the appellant, cited: Bast v. Ketchum,5 Mo. App. 433; O'Fallon Building Co. v. Rodrigues, 6 Mo. App. 576; Moore v. Damon, 4 Mo. App. 111.
R. H. KERN, for the respondent, cited: Braman v. Perry, 12 Pick. 118.
In December, 1872, the plaintiff sued one Allison before a justice of the peace, under the act concerning landlords and tenants, for possession and $33.35 accrued rent. Judgment was rendered for the plaintiff according to his complaint, and the defendant took an appeal, with the present defendant as his surety in the recognizance. The Circuit Court affirmed the judgment of the justice for the same amount, adding nothing for the continued occupancy of the tenant during the pendency of the suit. Execution was issued, and the amount of this judgment was duly collected.
The appeal recognizance contained a condition for the payment of “all rents that have or may accrue.” The present action is for recovery, under this condition in the recognizance, of the amount of rent that accrued during the pendency of the former suit. Plaintiff obtained judgment before a justice of the peace, and also, on defendant's appeal, in the Circuit Court.
The incident that first attracts attention in this proceeding is the absolute nullity, under the rulings of this court, of the proceedings under the Landlords and Tenants' Act. It nowhere appears in the record of that case that the justice before whom it was begun and determined was a “justice of the peace in the ward in which the property is situated, or in any adjoining ward.” Wag. Stats. 882, sect. 33.
The rented premises are described as “a certain two-story brick dwelling-house, situated on the north-west corner of Mercer and Spring Streets, in the Fifth Ward in the city of St. Louis, in St. Louis County.” The most definite description of the justice, anywhere in the papers, informs us that he is a “justice of the peace in and for the county of St. Louis and State of Missouri.” We can have no judicial knowledge of the part of St. Louis County in which the...
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...409; Adams v. Wilson, 10 Mo. 341; Garnet v. Rodgers, 52 Mo. 145; Kinsar v. Shands, 52 Mo. 326; Moore v. Damon, 4 Mo. App. 111; Hessey v. Heitkamp, 9 Mo. App. 36; Cooley Const. Lim., (4 Ed.) side p. 188; 2 Hilliard on Torts, (3 Ed.) p. 189, § 3; C. & A. R. R. Co. v. Erickson, 91 Ill. 613; s.......
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...consideration for, and no liability on, the appeal bond." In support of the above quoted text Garnet v. Rodgers, 52 Mo. 145, and Hessey v. Heitkamp, 9 Mo.App. 36, are cited. The Garnet case involved the validity of an bond from a justice of the peace court. Garnet had obtained a judgment by......
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Downing v. La Shot
...for, and no liability on, the appeal bond." In support of the above-quoted text, Garnet v. Rodgers, 52 Mo. 145, and Hessey v. Heitkamp, 9 Mo. App. 36, are cited. The Garnet Case involved the validity of an appeal bond from a justice of the peace court. Garnet had obtained a judgment by defa......
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...Heirs, C.C.E.D.La., 153 F. 240; Brounty v. Daniels, 23 Neb. 162, 36 N.W. 463; 5 C.J.S., Appeal and Error, p. 1579, § 2035. In Hessey v. Heitkamp, 9 Mo.App. 36, 38, the court said: "The recognizance is void for every purpose, of no obligatory force whatever upon the sureties, when the appeal......