Illinois Glass Co. v. Ingraham

• Decision Date: 20 June 1924
• Docket Number: No. 18576.,No. 18577.,No. 18578.,18576.,18577.,18578.
• Citation: 264 S.W. 43
• Parties: ILLINOIS GLASS CO. v. INGRAHAM (F.W. WOOLWORTH CO. et al., Garnishees).
• Court: Missouri Court of Appeals

264 S.W. 43

ILLINOIS GLASS CO. v. INGRAHAM (F.W. WOOLWORTH CO. et al., Garnishees).

No. 18576.

No. 18577.

No. 18578.

St. Louis Court of Appeals. Missouri.

June 20, 1924.

Rehearing Denied July 11, 1924.

Appeal from St. Louis Circuit Court; Robert W. Hall, Judge.

Action by the Illinois Glass Company against Charles W. Ingraham, and the F. W. Woolworth Company and another, garnishees. From order sustaining defendant's motion to set aside judgment for plaintiff, quash execution, and dismiss plaintiff's appeal from justice court, and overruling plaintiff's motion to amend transcript from justice court, plaintiff appeals. Affirmed.

Joseph F. Dixon, of St. Louis, for appellant.

Frank M. Slater and Earl M. Pirkey, both of St. Louis, for respondents.

DAVIS, C.

This is a suit on an account begun in the justice of the peace court, in which court judgment was rendered for defendant. Plaintiff appealed to the circuit court, where on default the circuit court rendered judgment in plaintiff's favor for $80.50, with $8.86 interest; the total judgment reading $89.36. From the order of the circuit court sustaining defendant's motion to set aside the judgment, quash the execution, and dismiss the appeal taken by plaintiff from the justice of the peace court, and from the order of the court overruling the plaintiff's motion filed to amend the transcript of said justice, plaintiff appealed.

The record tends to show that on March 14, 1921, before Wm. J. Blesse, justice of the peace of Fifth district, city of St. Louis, plaintiff filed an account in the above cause, reading: "Suit on an account as per statement attached $80.50." The statement is as follows: "To balance: Dec. 7. To merchandise $80.50." Upon summons a trial was had, both parties appearing thereat, and judgment was rendered for defendant. Plaintiff thereupon filed its affidavit and bond for an appeal, and was granted an appeal to the circuit court of the city of St. Louis. Thereafter, on October 27, 1921; a transcript in said cause was filed with the clerk of the circuit court of said city. So much of said transcript as is pertinent to the issues here involved, reads:

"Alias summons issued to Constable P. A. Austin March 31, 1921, returnable April:5, 1921, at 8 a. in. Alias summons returned duly served by Constable P. A. Austin March 2, 1921. Cause continued to April 25, 1921, at 8 a. m., further to May 10, 1921, at 8 a. m., further to May 26, 1921, at 8 a. m.

"Now on this day and hour cause set for trial, parties appear ready for trial; the justice heard the evidence submitted, and, after considering the same, finds in favor of defendant and against plaintiff.

"It is therefor adjudged by the justice that plaintiff recover nothing of defendant Chas. W. Ingraham.

"Now on this 7th day of June, 1921, comes J. F. Dixon, attorney for the plaintiff, and files affidavit for an appeal from the judgment of the justice and bond in the sum of $50, with Illinois Glass Company, J. F. Dixon, as surety."

When the cause reached the circuit court the case was called for trial on May 18, 1922, and was continued by consent of both parties to June 12, 1922. On said last-mentioned day the case was called, and was passed to June 13, 1922, on which day a trial was had, defendant failing to appear, and the court rendered a judgment, including interest, in favor of plaintiff for $89.38. Thereafter, on January 9, 1923, at a subsequent term of court, an execution was issued on said judgment and notices of garnishment were served on S. S. Kresge Company, a corporation, and F. W. Woolworth, a corporation, garnishees herein.

On February 8, 1923, the defendant filed his motion to set aside the judgment, quash the execution, and dismiss the appeal, and, as a ground for the motion, alleged that the circuit court was without jurisdiction, because it appeared from the transcript of the justice that judgment was entered on May 26, 1921, and an appeal from the justice court was not taken (until June 7, 1921) within the 10 days as prescribed by law, and on February 27, 1923, the court sustained the motion.

On March 1, 1923, plaintiff filed a motion to set aside the order sustaining defendant's motion to set aside the judgment, etc., which motion was overruled by the court on March 15, 1923.

On February 10, 1923, plaintiff filed its motion for a rule to amend the transcript of the justice, which motion stated, in substance, that the cause was continued from May 26, 1921, to June 6, 1921, by the justice, and that the cause was tried on said June 6, 1921, before said justice, both parties appearing, the justice rendering judgment on said June 6, 1921, for defendant; that plaintiff duly appealed from said judgment on June 7, 1921, by filing its affidavit and appeal bond, which bond was approved and an appeal allowed to the circuit court; that, through inadvertence, oversight, and mistake, the justice's transcript failed to show a continuance from May 26, 1921, to June 6, 1921, and to show a judgment entered on said June 6, 1921. This motion for a rule to amend the transcript of the justice was overruled by the circuit court on March 27, 1923. On March 28, 1923, plaintiff filed its affidavit for appeal, and was allowed an appeal to this court.

On March 15, 1923, a hearing was had on plaintiff's motion to set aside order sustaining defendant's motion to vacate judgment, quash execution, dismiss appeal, and to overrule said motion filed. Plaintiff offered to prove in support of its motion that the judgment of the justice of the peace was rendered on June 6, 1921; that the appeal was allowed on June 7, 1921, offering the docket of the justice of the peace showing the entry of judgment on June 6, 1921, and offering to prove by the clerk of the justice who drew up the transcript that he inadvertently omitted showing a continuance from May 26 to June 6, 1921.

The following colloquy between the court and the parties' counsel took place:

"The Court: That does not look like a docket to me.

"Mr. Dixon: It is marked `Docket.'"

"The Court: That is not the docket. That is not the official docket of the justice court. You nave got here a memorandum docket that the judge keeps, like I make memorandums here, that may be incorrect, right in front of me. The docket is that which is entered by the clerk in a big, thick docket book.

"Mr. Dixon: I have got the clerk here to show that the entries are correct, if your honor please.

"The Court: The clerk can't show them unless he puts his official docket before him."

On March 27, 1923, a hearing was had on plaintiff's motion for a rule to amend the transcript of the justice of the peace. In support of its motion, plaintiff offered to prove that the justice rendered judgment for" defendant on June 6, 1921, and not on May 26, 1921, and that the transcript is erroneous in failing to show a continuance from May 26 to June 6, 1921. Plaintiff offered in evidence the files, summons, papers, and transcript of said judgment; also memoranda on back of summons reading as follows: "June 6th, 8a. 1921, judg. for deft. W. J. Blesse," and that the memorandum was made by the said justice, that Mr. Wood appeared before said justice on June 6, 1921, testified in this case, and that judgment was rendered on June 6, 1921, which offer the court overruled.

Two motions on the garnishment proceedings against the garnishees were filed, asking the court to set aside the order discharging the garnishees and dismissing the garnishments. Plaintiff offered to prove the same facts above related and made the same offer. The court overruled the two motions.

On January 12, 1923, notices of garnishment were served on S. S. Kresge Company and F. W. Woolworth, in pursuance of said execution. They were in due substance and form.

On March 1, 1923, the court ordered S. S. Kresge Company and F. W. Woolworth Company, the garnishees,...