Karicofe v. Schwaner

• Decision Date: 11 June 1917
• Docket Number: No. 12493.,12493.
• Citation: 196 Mo. App. 565,196 S.W. 46
• Parties: KARICOFE v. SCHWANER.
• Court: Missouri Court of Appeals

196 S.W. 46

196 Mo. App. 565

KARICOFE v. SCHWANER.

No. 12493.

Kansas City Court of Appeals. Missouri.

June 11, 1917.

Appeal from Circuit Court, Jackson County; Frank G. Johnson, Judge.

Action by Forest C. V. Karicofe, by W. H. A. Karicofe, next friend, against J. O. Schwaner. From an adverse judgment, plaintiff appeals. Affirmed.

L. N. Dempsey, of Kansas City, for appellant. Sebree, Conrad & Wendorff, of Kansas City, for respondent.

TRIMBLE, J.

This was an action, brought September 19, 1914, to set aside a judgment rendered by the circuit court of Jackson county on April 2, 1913. After a decision adverse to the petition, the case comes here by way of appeal.

To understand the nature of the judgment sought to be destroyed and the reasons appellant has for seeking its destruction, as well as respondent's contentions in opposition thereto, the following statement of facts is necessary:

Appellant Karicofe, defaulted in the payment of a deed of trust he had given, and the property was duly foreclosed and sold to the respondent, Schwaner; he receiving a trustee's deed in due form. Karicofe refused to give possession of the premises, and Schwaner brought an action in unlawful detainer against him in a justice's court. Summons was duly issued and served, the parties appeared, and on August 23, 1912, judgment for possession and damages was awarded. On August 29th, the sixth day after the rendition of the judgment, Karicofe filed an affidavit and bond for appeal, and on that date the justice made an order allowing an appeal to the circuit court. A transcript of the record and proceedings, together with the original papers, was filed in the circuit clerk's office on September 3, 1912. On the 2d of April, 1913, the case came on for trial, but Karicofe did not appear. His default was noted, and thereupon the evidence for the plaintiff was heard, and the circuit court rendered judgment in Schwaner's favor for possession of the premises and for damages. At the same term and on April 6, 1913, Karicofe filed a motion to set aside the judgment. Said motion set up that he (Karicofe) was born August 12, 1893, and consequently was not yet 21 years old and would not be until August 12, 1913; and the ground of said motion was that he was a minor and no guardian ad litem had been appointed for him either in the justice's or in the circuit court. On the hearing of this motion, evidence was offered in support thereof, and also evidence was introduced showing that, in obtaining the loan secured by the deed of trust which was foreclosed, Karicofe had, on April 3, 1912, made an affidavit that he was then 21 years old, and his parents had likewise made affidavit that he was born on August 12, 1890. The court, after hearing the evidence on said motion, overruled it. Thereupon Karicofe took steps looking toward an appeal. He filed the necessary affidavit, and an appeal was allowed; but it was never perfected. Afterwards, on September 19, 1914, as stated, he brought this separate and independent suit to set aside the judgment in unlawful detainer rendered by the circuit court.

Two grounds are relied upon as the basis of appellant's right to have the judgment annulled: First. That the circuit court acquired no jurisdiction over, or power to hear and determine, the unlawful detainer suit. Second. That at the time said court rendered judgment Karicofe was a minor, and, no guardian ad litem having been appointed for him, the court was without power to render a judgment against him.

The first ground invokes the principle that in an unlawful detainer suit the justice court has exclusive original jurisdiction, and, unless an appeal therefrom is applied for within the time allowed by statute, no jurisdiction over that particular case is acquired by the circuit court; for the only jurisdiction it can acquire is appellate. Nor, in such case, will the appearance in the circuit court of the opposite party confer jurisdiction. Robinson v. Walker, 45 Mo. 117; Sidwell v. Jett, 213 Mo. 601, 112 S. W. 56; In re Grading Bledsoe Hill, 222 Mo. 604, 608, 120 S. W. 1184. Appellant alleges in his petition that at the time the justice rendered judgment, to wit, on August 23, 1912, the circuit court was in session and the term continued thereafter till September 7th. Under section 7705, R. S. Mo. 1909, if the judgment of a justice in an unlawful detainer suit be rendered during the term of the circuit court, the appeal is returnable within six days after the rendition of the judgment. Section 7704 provides that no appeal shall be allowed unless the same be applied for and an affidavit and recognizance filed with the justice before the return day of the appeal. Section 7716 provides that the appellant shall cause to be filed in the circuit clerk's office a transcript of the record and proceedings, together with the original papers on or before the return day of the appeal. The justice's judgment was rendered August 23d, the affidavit and recognizance were filed on the 29th, and the transcript was filed in the clerk's office September 3d. Consequently, appellant asserts the circuit court was without jurisdiction to try said case on appeal and render a judgment therein. If it be admitted that the justice's judgment was rendered in term time, then the appeal was not applied for in time; because, although the 29th was the sixth day after the rendition of the judgment and was the return day of the appeal, yet section 7704 requires that the appeal shall be applied for, and the affidavit and bond filed, before the return day. Robinson v. Walker, supra, 45 Mo. loc. cit. 119. Section 7722 provides that where the complainant appeals and fails to do certain enumerated things, among which is the failure to file any affidavit or recognizance within the time required by law, the appeal shall be dismissed. And section 7723 provides that, where the defendant is the one who appeals, then, in case of "such default" (referring to the default specified in section 7722), the judgment of the justice may be affirmed or the appeal dismissed. It would seem that, strictly speaking, the word "default" here used might refer rather to the things the defendant fails to do after the appeal is obtained and does not include the failure to obtain an appeal. In the case of Coles v. Foley, 13 Mo. App. 249, the St. Louis Court of Appeals held that since section 7725 authorized the circuit court "in case of a judgment by default" to assess the monthly value of the premises and the damages, therefore section 7723 did not limit the court to a mere affirmance or dismissal. But in that case the defendant "had taken and perfected his appeal" and afterwards failed to appear; that is, he was strictly in default. So that the case, by reason of the facts, is not an authority squarely supporting the view that the circuit court in the case at bar had jurisdiction to try the case anew, where it is asserted that the appeal was not applied for in time.

Respondent argues that inasmuch as section 7717 provides that, if the appellant fails to file the transcript and papers on or before the return day of the appeal, the appellee may produce them, and the judgment shall be affirmed unless the appellant presents good cause for his default; and, since the circuit court tried the case as if it had jurisdiction, it may be presumed that the appellee, Schwaner, filed...