McKenna v. Wittman

• Decision Date: 17 February 1930
• Docket Number: No. 16802.,16802.
• Citation: 25 S.W.2d 541
• Parties: McKENNA v. WITTMAN et ux.
• Court: Missouri Court of Appeals

25 S.W.2d 541

McKENNA v. WITTMAN et ux.

No. 16802.

Kansas City Court of Appeals. Missouri.

February 17, 1930.

Rehearing Denied March 3, 1930.

Appeal from Circuit Court, Jackson County; Allen C. Southern, Judge.

"Not to be officially published."

Action by Dr. H. J. McKenna against J. H. Wittman and wife. From a judgment sustaining defendants' motion to stay, set aside, and quash execution theretofore rendered and overruling plaintiff's motion to set aside the order staying, setting aside, and quashing the execution and sustaining defendants' petition for writ of error coram nobis, plaintiff appeals.

Affirmed.

L. L. Watts, of Kansas City, for appellant.

C. P. Woodbury and C. A. Stratton, both of Kansas City, for respondents.

ARNOLD, J.

This is an action to recover an account for medical services rendered by plaintiff to a daughter of defendants. The record discloses the case was buffeted from "pillar to post" in the following manner.

The case was filed in the office of Joseph J. Dougherty, a justice of the peace of Kaw township, Jackson county, Mo., on November 28, 1927. On December 30, 1927, said justice on his own motion sent the cause to Justice Ray G. Cowan of the same township, where an amended statement was filed on January 9, 1928. On the 16th day of January, Justice Cowan, of his own motion, transferred the cause to the court of Justice M. H. Joyce in the same township. On February 6, 1928, a change of venue was taken by defendant J. H. Wittman, and the cause took its flight to the court of George F. Roach, a justice of the peace in said township. Again on February 8, 1928, another migration was decreed on Justice Roach's own motion, and this time the cause went to the court of Justice William E. Kehoe, in and for said township, county, and state. Not content to let it rest there, on February 13, 1928, on motion of defendant Mrs. J. H. Wittman, the cause again took up its migration, and this time, by transfer, it found lodgment in the court of Justice S. R. Layton, a justice of the peace in said Kaw township. A hearing was set for February 17, 1928, on which date Justice Layton continued the hearing to March 5, 1928, and, when that day arrived, the cause was again continued to March 23, 1928.

On the last-named date the cause came on for hearing in said court; plaintiff and defendants appearing in person and by attorney. Evidence was heard, and the court took the case under advisement, later entering judgment for plaintiff and against defendants in the sum of $300. On April 9, 1928, affidavit and bond for appeal were filed with defendant A. G. Gordon as surety on the bond. The bond was approved, and the appeal was allowed to the circuit court of Jackson county, Mo.

On September 14, 1928, plaintiff filed a motion in said circuit court to affirm the judgment rendered by Justice Layton, for the reason that defendants had served no written notice of appeal as required by section 2905, 2906, and 2907, R. S. 1919; and on September 19, 1928, said motion was sustained by the judge of division 5 of the circuit court, to which division the cause had been regularly assigned. On September 24, 1928, defendants filed a motion for a new trial, praying the court to set aside the order affirming the judgment, and this motion was overruled on September 26, 1928. On October 4, during the regular September, 1928, term, defendants filed their affidavit for appeal, which was allowed, and defendants given until the November term of said court to file their bill of exceptions. On February 20, 1929, plaintiff filed in the Kansas City Court of Appeals his motion to affirm the judgment of the circuit court for failure of defendants to perfect the appeal as provided in sections 1478, 1479 1480, R. S. 1919. Thereafter defendants filed in said Court of Appeals a motion to dismiss their appeal, which was thereafter overruled, the court sustained plaintiff's motion to affirm the judgment, and on March 15, 1929, this motion was sustained and the mandate of affirmance was filed of record in the circuit court of Jackson county, Mo.

On March 20, 1929, during the regular March term of said circuit court, defendants filed their petition for a writ of error coram nobis, a motion to stay execution on plaintiff's judgment, and a plea to the jurisdiction of the circuit court. On March 22d, said motion for a writ of error coram nobis, motion to stay execution, and plea to the jurisdiction of the court, were overruled. On March 30, defendants filed a motion to stay, set aside, and quash the execution issued on the judgment referred to. On April 13, 1929, the court sustained said last-named motion, thereby sustaining defendants' plea to the jurisdiction, motion to stay execution, and writ of error coram nobis. On April 17, 1929, and during the regular March term of said court, plaintiff filed a motion to set aside the court's order staying, setting aside, and quashing execution and order sustaining defendants' petition for writ of error coram nobis, which motion was overruled on April 19, 1929. From this ruling plaintiff has appealed.

There are six assignments of error: (1) The court erred in finding and ruling that the judgment of Justice S. R. Layton was rendered outside his territorial jurisdiction; (2) in ruling, as a matter of law, that it was without jurisdiction of the cause on appeal; (3) in setting aside the judgment of Justice S. R. Layton; (4) in rendering judgment for defendants; (5) in setting aside its order theretofore made, overruling defendants' plea to jurisdiction, motion to stay and quash execution, and petition for writ of error coram nobis; (6) on April 13, 1929, in sustaining defendants' plea to its jurisdiction, motion to stay and quash execution, and petition for writ of error coram nobis.

There assignments are closely related, being based primarily upon the question of whether the judgment of Justice Layton was void, and may be considered together. It is first contended, in support of the appeal, that the judgment of Justice Layton was not rendered outside his territorial jurisdiction. In this connection it is agreed that Justice Layton was appointed to his office by the county court of Jackson county, Mo., under the provisions of section 2689, R. S. 1919, the order reciting: "To reside and hold office outside of any of the eight districts of the justices of the peace in Kaw Township. * * *"

The order of appointment further recites: "It appearing to the court from the petition this day filed by divers citizens, each of them qualified voters of Kaw Township, Jackson County, Missouri, and that they each of them live more than five miles from the nearest justice of the peace in said township."

The limitation above mentioned and the last-quoted clause in the certificate of appointment is in conformity with the requirements of the statute above cited. It follows, therefore, that Justice Layton was not authorized to hold court anywhere within the eight districts of the justices of the peace of Kaw township. There is some dispute as to whether or not said justice in fact did hold court and try this case within the territorial jurisdiction of any of the said eight districts mentioned in his certificate of appointment. The testimony shows, and this is not disputed, that the witnesses were presented and examined in a room in the Gumbel building, located at Eighth and Walnut streets in Kansas City, which is within three blocks of the office of Justice Roach and within the territorial limits of his jurisdiction. The cause having been transferred to Justice Layton from one of the eight specified districts, the question of where the summons was issued is not material.

There is some conflict in the testimony as to where the record was made and the judgment entered of record. There is some dispute also as to whether the entry of the judgment on the case jacket or the regular docket constitutes the legal entry. Judge Woodbury, counsel for defendants, at the time of the alleged hearing or trial of the case, testified, as follows:

"Q. You don't know where the judgment was rendered? A. I take it that it was rendered from his office. He called me in the afternoon.

"Q. And you don't know where it was rendered? A. To my best knowledge I think he rendered it in his office.

"Q. (The Court) What office? A. 316 Gumbel Building.

"Q. (Mr. Watts) That is your best information? A. Yes, sir.

"Q. And belief? A. Best information and belief, yes, sir."

"This was evidence sufficiently substantial to support the ruling of the trial court that the judgment in Justice Layton's court was rendered within the limits of Justice Roach's district.

The testimony...