Johnson v. Stephens
| Decision Date | 05 July 1904 |
| Citation | 82 S.W. 192,107 Mo.App. 629 |
| Parties | JOHNSON, Respondent, v. STEPHENS, Appellant |
| Court | Missouri Court of Appeals |
Appeal from Clark Circuit Court.--Hon. E. R. McKee, Judge.
After the appeal was taken to this court, William W. Johnson respondent, departed this life intestate. The suit has been revived in the name of his administrator, Robert Johnson, who has entered his appearance to the suit in this court. The action was commenced before a justice of the peace and was taken to the circuit court by appeal from the judgment of the justice. On a trial de novo in the circuit court, the verdict of the jury was for the plaintiff and judgment was rendered on the verdict. Defendant appealed.
The petition and the evidence offered by plaintiff show the following state of facts: In July, 1897, William Johnson borrowed of the defendant seven hundred dollars for which he gave defendant his promissory note due five years after date with interest from date at the rate of eight per cent per annum, payable annually and if not paid to become a part of the principal and bear the same rate of interest. To secure the note Johnson executed and delivered to defendant a deed of trust on a lot in the city of Kahoka, Clark county Missouri, on which lot was a livery barn. On June 18, 1900 Johnson having failed to pay any interest on the note or the State, county and city taxes, which had accrued after the execution of the deed of trust on the livery barn, and being unable to pay either, it was verbally agreed between Johnson and defendant that Johnson would convey the mortgaged property to defendant; that defendant would pay the back taxes and surrender the note and enter satisfaction of the deed of trust and would sell the property when he could and after reimbursing himself for his debt and interest, and for all taxes that he might pay, if any balance remained, he would hand it over to Johnson. In pursuance of the agreement, Johnson and wife executed and delivered to defendant an unconditional deed conveying to him the mortgaged property. Defendant accepted the deed, satisfied the deed of trust and surrendered it together with the note to Johnson and then took possession of the livery barn and rented it for three or four months at five dollars per month and then rented it from January 1, 1901, to January 1, 1902, in consideration of certain necessary repairs to be made to the barn by the lessee. After the repairs were made, defendant sold the barn for one thousand dollars. On the date the deed to the barn was made by Johnson to defendant, the debt and taxes against the property aggregated nine hundred dollars. The suit was to recover one hundred dollars alleged to be due under the verbal contract of January, 1900, between Johnson and defendant, being the difference, as alleged by plaintiff, between what was due to defendant and the amount for which he sold the property.
Judgment reversed and cause remanded.
O. S. & G. M. Callihan for appellant.
(1) This action being for an accounting, is purely an equitable proceeding, of which the justice of the peace before whom it was brought, had no jurisdiction; and the right of the circuit court to hear and determine the matters involved, being derivative, and not original, it acquired no jurisdiction on appeal. Seeser v. Southwick, 66 Mo.App. 671; Miller v. Life Ins. Co., 68 Mo.App. 19. (2) Such want of jurisdiction is not waived by the appearance of defendant, as it is not the jurisdiction of the person but of the subject-matter that is wanting, and that defect may be taken advantage of at any stage of the proceedings; even in the appellate court. White v. Railroad, 72 Mo.App. 400; Bank v. Kent Doak, 75 Mo.App. 332.
T. L. Montgomery for respondent.
(1) The cause of action is legal and not equitable and the justice of the peace had jurisdiction thereof. The court tried the case before a jury and submitted the issues raised by the pleadings on instructions asked by plaintiff and defendant on the theory that the defendant was a mortgagee in possession of the property. Then even if the case was foreclosure under our statute and under the construction placed thereon by our courts it is a statutory and legal action and the case was properly tried as a case at law. R. S. 1889, sec. 4342; Smith v. Finn, 77 Mo. 500; Thayer v. Campbell, 9 Mo. 167. (2) In construing the very statute here in question, above cited, our courts have departed from this doctrine and held that the defense may be made under the statute before a justice of the peace. That ca...
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