Martone v. Bryan

• Citation: 130 S.W.2d 962,233 Mo.App. 1249
• Parties: TONEY MARTONE, RESPONDENT, v. JOHN W. BRYAN, DEFENDANT, WILSON & COMPANY, GARNISHEE, APPELLANT
• Decision Date: 19 June 1939
• Court: Kansas Court of Appeals

130 S.W.2d 962

233 Mo.App. 1249

TONEY MARTONE, RESPONDENT, v. JOHN W. BRYAN, DEFENDANT, WILSON & COMPANY, GARNISHEE, APPELLANT

Court of Appeals of Missouri, Kansas City

June 19, 1939

Rehearing Denied 233 Mo.App. 1249 at 1256.

Appeal from the Circuit Court of Jackson County.--Hon. Brown Harris Judge.

REVERSED.

Judgment reversed.

J Cairns and Glen A. Wisdom for appellant.

(1) The justice of the peace did not have jurisdiction to render a judgment against the defendant because no order of publication was made by the justice. Sec. 2436, R. S. Mo. 1929; Vittert v. Melton (Mo. App.), 78 S.W.2d 467; State ex rel. v. Rutledge (Mo.), 56 S.W.2d 28, l. c. 37.; Shanklin ex rel. v. Francis, 67 Mo.App. 457; Weidman v. Byrne, 226 S.W. 280, 207 Mo.App. 500. (2) Since the justice lacked jurisdiction to render a judgment against the defendant, he had no jurisdiction to order the garnishee to pay any money into court and no jurisdiction to render a judgment against the garnishee for garnishee's failure to comply with said order. Vittert v. Melton (Mo. App.), 78 S.W.2d 467; Secs. 2436, 2437, R. S. Mo. 1929; Federal Truck Co. v. Mayer, 270 S.W. 407. (3) The justice did not have jurisdiction of the res because the requirements of Secs. 1424-1425, R. S. Mo., 1929, were not met by plaintiff. In that, the said statute requires that in all actions commenced in this state in which it is sought to garnish or attach wages, the petition or statement filed in said cause and the summons or writ of garnishment or attachment shall affirmatively show the place where the defendant resides and the place where the debt is contracted and the cause of action arose; and the mere statements on said petition and the notice and summons of garnishment that defendant is a resident of Kansas and the cause of action arose in Missouri are not a compliance with the statute. Secs. 1424-1425, R. S. Mo., 1929; Milliken v. Armour & Co. (Mo. App.), 104 S.W.2d 1027; J. W. Jenkins Sons Music Co. v. Sage, 184 Mo.App. 340, 171 S.W. 672; Kilroy v. Briggs, 200 S.W. 436, 198 Mo.App. 240; MacLean v. Reynolds, 220 N.W. 435, 175 Minn. 112. (4) Since the case originated in the justice court and no jurisdiction was ever obtained of the person of the defendant and no jurisdiction was obtained by the justice of the res, the circuit court was without jurisdiction. J. W. Jenkins Sons Music Co. v. Sage, 184 Mo.App. 340, 171 S.W. 672; Vittert v. Melton (Mo. App.), 78 S.W.2d 467. (5) Strict compliance with statutory requirement is essential to confer jurisdiction on justice of the peace courts because they are creatures of statute and have not authority outside that given by the Legislature. State v. Trimble, 247 S.W. 187, l. c. 191; State v. Metzger, 26 Mo. 65; Hansberger v. Pacific Ry. Co., 43 Mo. 196; Edmondson v. Kite, 43 Mo. 176; Taffe v. Ryan, 25 Mo.App. 563; State v. Lawrence, 45 Mo. 492. (6) Attachment proceedings are purely statutory and strict compliance with the statute is essential to jurisdiction. Vittert v. Melton (Mo. App.), 78 S.W.2d 467; Federal Truck Co. v. Mayer, 270 S.W. 407.

Joe Levin, Harold Waxman and Charles N. Sadler for respondent.

No bill of exceptions having been filed there is nothing before this court for review except the record proper, about which no question is raised by appellant. Kettle v. Gates, 96 S.W.2d 637. (2) Transcript of justice is not a part of the record proper. State v. McKinley, 111 S.W.2d 115-117; State v. Langford, 240 S.W. 167-168, 293 Mo. 436, 442; Elliott v. Pogue, 20 Mo. 263. (3) Reasons why trial court erred, not brought to trial court's attention in motion for new trial, will not be considered on appeal. Belcher v. Haddix, 44 S.W.2d 177; South Side Buick Auto Co. v. Bejack, 44 S.W.2d 870; Robinson v. Cantley, 14 S.W.2d 190; Masman v. Pollock, 53 S.W.2d 1105. (4) Motion for new trial and motion in arrest of judgment must be incorporated in bill of exceptions before they can be considered by appellate court. Rees et al. v. Burrell et al. (Johnson et al., Intervenors), 55 S.W.2d 1003; Chambers v. Sovereign Camp, 33 S.W.2d 1029; Lane v. Lane, 17 S.W.2d 584. (5) Garnishee stands in position of third party as to judgment and cannot raise questions of jurisdiction of defendant. Goodman v. Gordon, 61 Mo.App. 685. (6) The judgment of circuit court being regular on its face cannot be attacked collaterally by garnishee. Goodman v. Gordon, 61 Mo.App. 685.

OPINION

KEMP, J.

This is an action in attachment filed in the justice court of Louis J. Mazuch, Second District, Kaw Township, Jackson County, Missouri. Kaw Township is within the limits of Kansas City, Missouri. Defendant is a non-resident of Missouri, and the sole ground of attachment is the non-residence of defendant. The attachment is directed at wages earned by defendant as an employee of Wilson & Company, the garnishee and appellant herein. The appellant was twice served with "notice and summons of garnishment" and each time made a return admitting that it owed the defendant $ 16.60.

On July 9, 1937, and shortly prior to the filing of the second answer by the garnishee, although no order of publication had been made by the justice of the peace, the constable of said justice court made a return that on that date he has posted four advertisements in four public places in Jackson County, Missouri, notifying defendant that a writ of garnishment in the above cause had been issued against him and that said cause was returnable July 30, 1937.

On August 16, 1937, the following judgment in the justice of the peace court was rendered:

"Plaintiff appears by his attorney of record, Joe Levin, but defendant, John W. Bryan, appears not but makes default, and garnishee Wilson and Company, appears not but makes default, and the justice having heretofore found that said garnishee, Wilson and Company, was indebted to defendant, John W. Bryan, in the sum of $ 33.20 and said sum having been ordered to be paid into court and garnishee failing to pay said sum into court, and the justice having heard the evidence finds that defendant is indebted to plaintiff in the sum of $ 48.75, and garnishee has the sum of $ 33.20 belonging to defendant, and that plaintiff's attachment should be and the same is hereby sustained.

"WHEREFORE IT IS ORDERED, ADJUDGED AND DECREED, that plaintiff's attachment be sustained against defendant, in the sum of $ 33.20 found in the hands of Wilson and Company, garnishee, and said garnishee having failed to pay said sum into court as directed, that plaintiff have and recover of and from Wilson and Company, garnishee in this cause, the sum of $ 33.20 and his costs herein, and that execution issue therefor."

On the same date, garnishee, Wilson & Company, took an appeal to the circuit court of Jackson County, Missouri. After said appeal was lodged in the circuit court, garnishee filed a motion to dismiss on the ground that the justice of the peace acquired no jurisdiction of the person of defendant or the subject-matter of the cause of action and that, accordingly, the circuit court acquired no jurisdiction to render judgment against the garnishee.

On December 21, 1937, said motion was heard and overruled and judgment was rendered in favor of the plaintiff and against the garnishee for the sum of $ 33.20. From said judgment an appeal was duly allowed to this court. No bill of exceptions was filed and only the record proper is before us.

The sole contention made by appellant in this case is that the justice of the peace never acquired jurisdiction in this case, and hence the circuit court was without jurisdiction to render the judgment herein.

Respondent contends that no part of the transcript of the justice is a part of the record proper in this case, and apparently makes the further contention that, this being true, the record proper is confined merely to the judgment of the circuit court which is regular on its face, and hence there is nothing before this court for review.

In Smith v. Moseley, 234 Mo. 486, l. c. 495, it is held that:

"The record proper consists of the process and return, the pleadings, the verdict and judgment in civil cases."

In Hill v. Combs, 92 Mo.App. 242, the court at page 247 of the opinion said:

"And it will be seen by reference to Bateson v. Clark, supra, (27 Mo. 34), and the many cases that have followed it, that it has also been held that the record proper consists of the petition, summons and all subsequent pleadings, together with the verdict and judgment, and if material error in such record appears, the judgment will be reversed whether any exceptions were saved or not."

In Barnes v. Plessner, 162 Mo.App. 460, 142 S.W. 747, the court had under consideration a replevin suit which originated before a justice of the peace in Schuyler County. As in the case at bar, it was there contended that "the judgment should be reversed because the record fails to show the justice of the peace, before whom the suit was instituted and tried, was possessed of jurisdiction over the same." The statute there under considered with reference to jurisdiction provided:

"Every action recognizable before a justice of the peace shall be brought before some justice of the township, either: First, wherein the defendants, or one of them, resides, or in any adjoining township, etc."

The evidence there showed that both plaintiff and defendant resided in Chariton Township in Schuyler County, and the replevin suit was instituted before a justice of the peace in Liberty Township in the same county. The docket entries of the justice did not disclose that Liberty Township, in which the suit was instituted and tried, and Chariton Township, in which both plaintiff and defendant resided, adjoined. It was there held that:

"It is always competent to look at the...