Hirsch v. Hirsch

• Decision Date: 15 June 1925
• Docket Number: No. 15409.,15409.
• Citation: 273 S.W. 151
• Parties: HIRSCH et al. v. HIRSCH.
• Court: Missouri Court of Appeals

273 S.W. 151

HIRSCH et al. v. HIRSCH.

No. 15409.

Kansas City Court of Appeals. Missouri.

June 15, 1925.

Appeal from Circuit Court, Jackson County; O. A. Lucas, Judge.

"Not to be officially published."

Action by Fred Hirsch and others against Zelda Hirsch, trading as the Hirsch Dry Goods Company. Judgment for plaintiffs, and defendant appeals. Reversed and remanded.

Charles A. Stratton and Mertsheimer & O'Donnell, all of Kansas City, for appellants.

Edwards, Kramer & Edwards and G. C. Weatherby, all of Kansas City, for respondent.

BLAND, J.

This is a suit upon an open account. There was a verdict and judgment in favor of plaintiffs, and defendant has appealed.

The facts show that plaintiffs brought a suit before a justice of the peace in Jackson county against "the Hirsch Dry Goods Company, a corporation." It was alleged in the statement that said company was "a corporation duly organized, existing and doing business according to law, and located in Kansas City, Jackson county, Mo., maintaining its general office and place of business at said last above-named place;" that certain merchandise was sold and delivered by plaintiffs to "the defendant"; that defendant, "attempting not to receive the goods," shipped them back to plaintiffs; that plaintiffs received back the goods "as merchandise received to be disposed of as circumstances of the case required," and that said merchandise was afterwards sold at a loss, leaving a balance due plaintiffs in the sum of $279.50. The justice issued a summons, directed to the constable, to summon "Hirsch Dry Goods Company, a corporation." The constable's return shows service "by delivering a copy of the within writ to the within named defendants Hirsch Dry Goods Company, by serving Mrs. Ella Hirsch, sole owner." The justice rendered judgment against defendant "Hirsch Dry Goods Company, a corporation" in the sum of $279.50 and costs. An appeal was taken by Zelda Hirsch, the affidavit of appeal and bond being signed by her.

After the appeal was lodged in the circuit court of Jackson county, the assignment division on April 7, 1922, at the March term, assigned the case to division No. 8. On May 6, 1922, at the March term, the judge of division No. 8 caused to be entered of record the following:

"Ordered that all matters, motions, and causes not otherwise disposed of be and they are continued until the May, 1922, term of this court."

On May 12, 1922, at the May term, the judge of the assignment division purported to cause the case to be assigned to division No. 4, and on September 9, 1922, at the May term, the judge of division No. 4 caused to be entered of record the following:

"It is now ordered that this court do adjourn for the term, and that all causes, motions, demurrers, and other matters now pending and undisposed of be, and they are hereby, continued to the next term of this court."

The records of the assignment division of October 18, 1923, recite, "By agreement of the parties jury waived." On November 23, 1923, the assignment division purported to assign the case to division No. 2. On December 28, 1923, at the November term, division No. 2 undertook to assume jurisdiction of the cause and tried the case. During the trial it was admitted by "the defendant" that there was no such corporation and no such entity as the "Hirsch Dry Goods Company, a corporation." Plaintiffs asked to amend their petition by substituting "Zelda Hirsch, trading as the Hirsch Dry Goods Company," in place of Hirsch Dry Goods Company, a corporation, as the party defendant. The court took the matter under advisement, and thereafter permitted the substitution requested by plaintiffs, finding that Zelda Hirsch, trading as the Hirsch Dry Goods Company, was the real party in interest, and that "Zelda Hirsch has appeared and is now appearing here as defendant, and plaintiffs' request to substitute her as the party defendant herein would not, if granted, prejudice her interests herein." It was ordered that plaintiffs' motion to amend their petition by substituting the real party defendant be allowed, and the court rendered judgment in the sum of $333.10 against Zelda Hirsch and in favor of plaintiffs. The said Zelda Hirsch filed motions for a new trial and in arrest of judgment, which were overruled, and she appealed.

It is insisted that the jurisdiction of this cause at the time of the trial was in division No. 8 and not in division No. 2 in which the judgment was rendered, and that, therefore, the judgment was void. We think this contention is well taken. It is stated in Cole v. Norton (Mo. App.) 251 S. W. 723, 724:

"It is held that each judge of the various divisions of the circuit court of Jackson county, Mo., at Kansas City, holds court for the trial of such causes as are assigned to him as separately and distinctly from the circuit court held by any of the other judges as he does from the circuit court held in any other circuit in the state. Title Guaranty & Surety Co. v. Drennon (Mo. App.) 208 S. W. 474, 475; Voullaire v. Voullaire, 45 Mo. 607; Haehl v. Wabash Ry. Co., 119 Mo. 325, 337, 24 S. W. 737; Goddard to Use v. Delany, 181 Mo. 564, 581, 80 S. W. 886; State ex rel. v. Eggers, 152 Mo. 485, 54 S. W. 498; State ex rel. v. Allen, 235 Mo. 298, 304, 138 S. W. 339; In re Ward Parkway, 188 Mo. App. 567, 578, 176 S. W. 529; State ex rel. v. Bird, 199 Mo. App. 76, 202 S. W. 436; Hargardine-McKittrick Dry Goods Co. v. Garesche (Mo. Sup.) 227 S. W. 824; Meierhoffer v. Hansel 243 S. W. 131.

"When this case was transferred by division 6 to division 2, the latter, as before stated, had jurisdiction so long as the cause remained therein, and jurisdiction could not have been conferred upon division 3 even by consent of the parties. While division 3 had jurisdiction of this class of cases, it had no jurisdiction over the subject-matter of the cause."

The record affirmatively shows that the cause was in division No. 8 at the time it was attempted to be tried and judgment rendered in division No. 2. In their brief plaintiffs quote what they say to be rule 22 of the circuit court of Jackson county, and claim that a proper `construction of that rule shows that the case was not pending in division No. 2 at the time of the trial, but that on May 6, 1922, it was returned by that division to the assignment division, and on May 12th of that year assignment division assigned the cause to division No. 4, and on September 9th of that year division No. 4 returned the cause to the assignment division, and on November 23, 1923, the assignment division assigned the cause to division No. 2, where the trial took place. We are doubtful whether the rule, if any, in question...