Miller v. Gordon

• Decision Date: 03 November 1902
• Citation: 70 S.W. 269,96 Mo.App. 395
• Parties: ANN MILLER, Respondent, v. W. F. GORDON, Appellant
• Court: Kansas Court of Appeals

70 S.W. 269

96 Mo.App. 395

ANN MILLER, Respondent, v. W. F. GORDON, Appellant

Court of Appeals of Missouri, Kansas City

November 3, 1902

Appeal from Clay Circuit Court.--Hon. J. W. Alexander, Judge.

AFFIRMED.

Judgment affirmed.

D. C Allen for appellant.

(1) All courts in Missouri will take judicial notice of all public laws, the counties composing judicial circuits, in what circuit a county is situate, the terms of circuit courts and the beginnings thereof, and, accordingly, that the June term of Clay Circuit Court began in 1902 on the ninth day of June in that year. Session Acts 1901, p. 108, et seq.; State ex rel. Seibert, 130 Mo. 202; Emerson v. Railroad, 111 Mo. 161; Harwood v. Toms 130 Mo. 225; State v Worrell, 25 Mo. 212; Hicks v. Ellis, 65 Mo 183; State v. Daniels, 66 Mo. 206. (2) "Said" and "aforesaid" are synonymous. Rex v. Countesthorpe, 2 Bar. and Ad. (Am. Ed.), 128; Webster's Dictionary; Anderson's Law Dictionary. "Aforesaid," as a general rule, refers to the nearest antecedent. 2 Kent (9 Ed.), side page 555; Am. and Eng. Ency. of Law, words "said" and "aforesaid" and notes. The words, "as aforesaid," as a general rule, refer to the nearest antecedent, with the idea of mode or manner or way added. 21 Am. and Eng. Ency. of Law (1 Ed.), Vol. 21, p. 442, note 3. The word "such" in meaning, has much in common with "as aforesaid." It means "of that kind," "the same that," etc., and refers to what has been previously specified. Webster's Dictionary; Anderson's Law Dictionary. (3) Section 597, as amended, must be construed in connection with sections 566, 567, 568 and 569. It is in pari materia with those sections, and words, phrases and statutes in pari materia must be construed together. St. Joseph v. Porter, 29 Mo.App. 605; Pitt v. Bishop, 53 Mo.App. 600-606; State ex rel. v. Slover, 126 Mo. 652; Macke v. Byrd, 131 Mo. 682. (4) A safe rule of construction is to construe section 597, as amended (in connection with sections 566, 567, 568 and 569) as written, without regard to the results of construction or the wisdom of the law as thus construed. Aultman v. Daggs, 50 Mo.App. 280. (5) A change in the text of a statute implies an intent to alter the law formerly expressed therein. Grocer Co. v. Walton, 69 S.W. 477. (6) In the interpretation of section 597, as amended, we should not deviate from the common use of language, at least if we have not very strong reasons for it. Potter's Dwarris Statutes on (Ed. 1871), p. 127, rule 8. The interpretation of the amendatory act should be according to the most natural and obvious meaning of its language. Courts can not correct the errors, if any, of legislation. Potter's Dwarris, etc. (Ed. 1871), p. 144, rule 9. Another safe rule in construing the amendatory act is to follow its grammatical and natural sense. There is nothing in the context showing a different meaning. Potter's Dwarris, etc. (Ed. 1871), p. 196, clause 5. No interpretation of the amendatory act should be made against its express letter. Potter's Dwarris, etc. (Ed. 1871), p. 207, clause 6.

Theodore Emerson for respondent.

(1) The following statutes govern such cases: sec. 568 of article 4 of chapter 8; section 597 of article 5 of chapter 8 (as amended March 22, 1901): (2) For years it has been the law of the State of Missouri for judgments to be obtained in suits on bonds, bills of exchange and promissory notes at first term of court after service of more than fifteen days. And this law was not intended to be changed by the act of the Legislature March 22, 1901, nor was it changed. (3) There is nothing in the contention of counsel for appellant that thirty days' service is required in all cases.

OPINION

SMITH, P. J.

--This is an action which was brought upon a promissory note to recover the sum of $ 1,850, and the interest that had accrued thereupon. The defendant was summoned more than fifteen but less than thirty days before the first day of the term at which he was required to appear. There was an appearance and answer filed by the defendant on the first day of the term. Later on during the same term the defendant moved the court to continue the cause as of course and without trial to the next succeeding term, which motion was denied and defendant duly excepted. Still later on during the term the cause was called for trial, and defendant declining to further appear, judgment nil dicet was given for plaintiff. The defendant in due time filed his motion in arrest, based on the ground that the court was without jurisdiction to render the judgment.

The contention here of the appealing defendant is that since the Amendatory Act of March 22, 1901 (Sess. Acts 1901, pp. 85-6), went into effect, that in all cases where the action is founded upon any bond, bill of exchange or promissory note for the direct payment of money or property unless the defendant be served with process thirty days before the first day of the term to which he is summoned to appear, such term becomes merely the appearance term and the case goes over for trial at the next succeeding term. A brief reference to prior statutory enactments relating to the same subject-matter as the amendment, may assist us in our endeavors to ascertain the meaning of the language employed in the latter.

Section 5 of article 6, chapter 128, Revised Statutes 1855, provided that every defendant who should be summoned or notified according to the provisions of that act should, except as thereinafter provided, demur to or answer the petition on or before the sixth day of the term at which he was required to appear, if the term should so long continue and if not then on or before the end of the term, unless further time were given. Section 24, of the same article and chapter, further provided that when the petition was founded solely upon a bond, bill or note for the direct payment of money or property and the defendant was personally served with process, he should demur to or answer the petition on or before the second day of the term at which he was bound to appear, if the term should so long continue; if not then within such time in the term as the court should direct. Section 26, of the same article and chapter, still further provided that suits founded upon such bonds, bills and notes should be determined at the term at which defendant was bound to appear unless continued for cause.

So much of section 5 of chapter 165, General Statutes, 1865, as is applicable to counties having forty thousand inhabitants of less--Clay county has less than forty thousand--is a literal embodiment of sections 24 and 25 of Revised Statutes, 1855, just referred to, so that as to counties of the class to which Clay belongs, the provisions of sections 24 and 25, Revised Statutes 1855, supra, were carried forward into the statutes of 1865 without any change.

In section 3514, Revised Statutes, 1879, so far as it relates to counties having forty thousand inhabitants or less, it is provided that "every defendant who shall be summoned or notified according to the provisions of this chapter shall, except as herein provided, demur to or answer the petition on or before the sixth day of the term at which he is required to appear if the term shall so long continue, and if not, then before the end of the term, unless further time be given by the court; provided, that where the suit is founded upon any bond, bill of exchange or promissory note for the direct payment of money or property and the defendant had been served with process, he shall demur to or answer the petition on or before the second day of the term, if it continues so long, otherwise in such time as the court shall direct, and all suits founded upon bonds, bills of exchange or promissory notes for the direct payment of money or property, shall be determined at the term at which the defendant is required to appear unless continued for good cause." This section revived and again put in operation in their entirety, in counties of the class to which Clay county belongs, the three sections of the revision of 1855, referred to at the outset.

In section 2042, Revised Statutes, 1889, it is provided that in counties having forty thousand inhabitants or less "every defendant who shall be summoned or notified according to the provisions of this chapter shall demur to or answer the petition on or before the third day of the term at which he is required to appear, if the term so long continue, and if not then before the end of the term, unless time be given by the court: provided, that in all cases wherein the defendant has been served with process or notified, thirty days before the first day of the term at which he is required to appear, and in all cases where the suit is founded upon any bond, bill of exchange or promissory note for the direct payment of money or property, and the defendant has been served with process, he shall demur to or answer the petition on or before the third day of the term if it continues so long or otherwise in such time as the court shall direct, and in all suits wherein the defendant has been served with process or notified thirty days before the first day of the term at which he is bound to appear and in all suits founded upon bonds, bills of exchange and promissory notes for the direct payment of property shall be determined at the term at which the defendant is required to appear unless continued for cause."

It will be noticed that the italicised part of this section (2042) is identical in terms with the italicised part of section 3514, Revised Statutes, 1879, already quoted, except that the defendant is required to demur or answer on or before the third day of the term instead of the sixth day.

This section (2042) further provided that if the defendant be served with process thirty days before...