Kyger v. Koerper, 39986.

• Citation: 207 S.W.2d 46
• Decision Date: 09 December 1946
• Docket Number: No. 39986.,39986.
• Parties: FRED H. KYGER and MRS. FRED H. KYGER v. JOHN A. KOERPER, Appellant.
• Court: United States State Supreme Court of Missouri

207 S.W.2d 46 FRED H. KYGER and MRS. FRED H. KYGER
v.
JOHN A. KOERPER, Appellant. No. 39986. Supreme Court of Missouri. Court en Banc, December 9, 1946.

Appeal from Lawrence Circuit Court. — Hon. Emory E. Smith, Judge.

AFFIRMED.

Wm. J.B. Myres and Edward V. Sweeney for appellant.

(1) After the appellant filed his return to the preliminary writ of prohibition, the respondents herein filed a motion for judgment on the pleadings. That motion was overruled. The respondents declined to reply, objected to the introduction of any evidence, and offered no evidence on their behalf. Therefore, all allegations in appellant's return must be taken as true. State ex rel. Farmer's Exchange Bank of Gallatin, Daviess County v. Beals, 227 Mo. App. 643, 55 S.W. (2d) 1005; State ex rel. Anderson v. Kirkland, 55 S.W. (2d) 697; State ex rel. American Pigment & Chemical Co. v. Shields, 141 S.W. 585, (2) The justice court had jurisdiction of the parties and the subject matter in the action between M.E. England and Omah England v. Fred H. Kyger and Mrs. Fred H. Kyger. The mere filing of a "Legislative Affidavit" by the Kygers did not oust the justice court of its jurisdiction. Sec. 1089, R.S. 1939; State v. Myers, 179 S.W. (2d) 72; State ex rel. Ford v. Hogan, 324 Mo. 1130, 27 S.W. (2d) 21; Carpenter v. Alton Railroad Co., 148 S.W. (2d) 68. (3) The action of the justice court in rendering judgment and overruling the motion to set same aside, even if improper, was only error. The Kygers had a full and adequate remedy at law by appeal to correct that error, if any. They made no attempt to exercise this adequate remedy at law. Therefore, the circuit court committed grave error in making the preliminary writ of prohibition absolute. State v. Myers, 179 S.W. (2d) 72; Delaney v. Police Court of Kansas City, 167 Mo. 667, 67 S.W. 589; State ex rel. Henry v. Cracraft, 237 Mo. App. 194, 168 S.W. (2d) 953.

H.A. Gardner and James E. Sater for respondents.

(1) By reason of filing the affidavit that a member of the legislature was an attorney in said cause, and was in actual attendance at the session thereof, etc., the court was divested of jurisdiction to render judgment in said cause; and it was likewise divested of jurisdiction to issue process to enforce said judgment. Sec. 96, Civil Code, 1943 Session Acts, 383; State v. Clark, 267 S.W. 413; State v. Myers, 179 S.W. (2d) 72. (2) Counsel cites a number of cases in respect to change of venue in civil cases, but these cases are not appliable. Aside from the Supreme Court decision in the Myers case, the change of venue statute in respect to suits in circuit courts, is quite different from this statute. No provision is made that the court is divested of jurisdiction to further act in the case. Sec. 2641, R.S. 1939; Doniphan v. Transue, 226 S.W. 635; State ex rel. Hazel v. Watkins, 253 S.W. 781; State ex rel. Buckingham Hotel Co. v. Kimmel, 183 S.W. 651; State ex rel. Gary Realty Co. v. Hall, 17 S.W. (2d) 935; State ex rel. Fowler v. Calvird, 93 S.W. (2d) 1108.

LEEDY, J.

This case reaches this court on transfer from the Springfield Court of Appeals. The proceeding is one in prohibition to restrain defendant-appellant, Koerper, a justice of the peace in Lawrence County, from

207 S.W.2d 47

issuing execution upon a judgment rendered by him against plaintiffs-respondents, who were defendants in an unlawful detainer action pending before him styled "M.E. England and Omah England, plaintiffs, v. Fred H. Kyger and Mrs. Fred H. Kyger, defendants." The Lawrence Circuit Court issued its preliminary rule, and, on hearing, it was made...