Howe v. Brouse, 53059

• Citation: 427 S.W.2d 467
• Decision Date: 08 April 1968
• Docket Number: No. 53059,No. 1,53059,1
• Parties: Elmer J. HOWE, Appellant, v. Eugene R. BROUSE, Respondent
• Court: Missouri Supreme Court

Page 467

427 S.W.2d 467

Elmer J. HOWE, Appellant, v. Eugene R. BROUSE, Respondent.

No. 53059.

Supreme Court of Missouri, Division No. 1.

April 8, 1968.

As Modified on Court's Own Motion for Rehearing or to

Transfer to Court En

Banc Denied May 13, 1968.

Elmer J. Howe, Kansas City, pro se.

E. E. Thompson, Herbert C. Hoffman, Counselor of Kansas City, Mo., Dan G. Jackson, Asst. City Counselor, Kansas City, for defendant-respondent; Popham, Thompson, Popham, Trusty & Conway, of counsel.

IVAN LEE HOLT, Jr., Special Judge.

Plaintiff filed a petition alleging that he was arrested on a warrant issued by the Police Department of the City of Kansas City, Missouri, charging him with violating Section 39.330 Revised Ordinances of Kansas City, Missouri, on destruction of personal property, of the value of $1.60. He further alleged on June 6, 1964 he appeared on that charge in Division No. 2 of the Municipal Court of Kansas City, Missouri, before Defendant, then acting as Judge of that Division. On that date he alleged the case was continued, and on June 13th, the complainant appearing on neither setting, the Defendant dismissed the charge, discharged Plaintiff, and assessed $10 costs against him. An appeal was taken to the Circuit Court and the charge dismissed.

Plaintiff further plead some immaterial matters concerning Defendant's actions and that Defendant's action in assessing costs was 'wholly and entirely without jurisdiction', arbitrary, willful, malicious, and illegal, causing him to be held in ridicule and contempt, and thereby damaged in his reputation and business associations. The petition prayed $50,000 actual and $100,000 punitive damages, thus giving us jurisdiction.

Defendant filed a motion to dismiss the petition for failure to state a claim upon which relief could be granted because Defendant's action was in the performance of his judicial function, and barred by the Statute of Limitations, Section 516.140, RSMo 1959. The trial court sustained that motion, overruled Plaintiff's Motion for a New Trial, and the appeal here followed.

Plaintiff vigorously and persistently has urged, and urges here, that Defendant's assessing costs against him after dismissing the charge and discharging him, was 'wholly and entirely without jurisdiction.' In this, we fear, the difficulty with his theory of liability is the same as that of the plaintiff's in Pogue v. Swink, 365 Mo. 503, 284 S.W.2d 868, on which he partly relies, l.c. 873, 'failure to carefully distinguish between acts 'which exceed the officer's jurisdiction, and those performed by him entirely without jurisdiction. '' As we further said there l.c. 873: '* * * the court in the person of Judge Swink had jurisdiction of the persons of the appellants and jurisdiction of the subject matter even though he acted in excess of his jurisdiction. 'Excess of jurisdiction,' as distinguished from the entire absence of jurisdiction, means that the act, although within the general power of the judge, is not authorized, and therefore void, with respect to the particular case because the conditions which alone authorize the exercise of his general power in that particular case are wanting, and hence the judicial power is not in fact lawfully invoked.' * * * (T)he consequence is that Judge Swink acted in excess of his jurisdiction, not wholly without jurisdiction, and is, therefore, not civilly liable in damages to the appellants, and the trial court properly dismissed their actions with prejudice * * *.'

Plaintiff admits in his brief 'that a...