Missouri Granitoid Company v. George
| Decision Date | 24 October 1910 |
| Parties | MISSOURI GRANITOID COMPANY, Respondent, v. G. H. GEORGE et al., Defendants; WILLIAM E. MORSCHEL et al., Appellants |
| Court | Missouri Court of Appeals |
Submitted on Briefs October 3, 1910.
Appeal from St. Louis City Circuit Court.--Hon. Matt. G. Reynolds Judge.
AFFIRMED AND REMANDED.
STATEMENT.--This action was begun before a justice of the peace of the fourth district of the city of St. Louis, to establish a claim for a mechanic's lien against the property of William E. and Minnie K. Moerschel, owners, for an alleged indebtedness arising for material furnished and work and labor done and which it is claimed entered into the construction of the building on lots described, located in that city, the material being furnished and the work and labor done, as it is alleged, at the instance of one George, principal contractor with the owners for the erection of the building.
The petition filed with the justice, after setting out proper averments as to the contracts, performance, value, ownership etc., and of giving to the owners notice in writing of the claim against the premises as required by statute, and avering the filing with the clerk of the circuit court of the city of St. Louis of the account with a true description of the property and the names of the owners and contractor, all verified and in accordance with statute, then avers that on the 27th of December, 1907, plaintiffs filed in the office of the clerk a notice stating that plaintiff would, on the 9th day of January, 1908, institute suit for the purpose of enforcing the payment of the indebtedness set out in the account, before the justice of the peace within and for the fourth district of the city of St. Louis, Missouri, giving the location of his office in that city. Judgment is prayed for the debt and interest and that it be declared a lien on the property. The owners filed no written answer, but the contractor filed a counterclaim. In the transcript of the justice's docket, as set out in appellants' abstract this appears: It is stated in the abstract that the summons bears no return by the constable nor any notation upon it as to when it was received by him. It further appears by this abstract that among the files of the case before the justice of the peace before whom the suit was instituted is this: (Signed), Then follow in the transcript various entries of continuances of the case until April 3d, when the defendant George filed his affidavit praying a change of venue and the venue was changed to the justice of the second district. The transcript of the docket of the justice of the second district shows issue and service of notice of change of venue and various continuances of the cause until the 29th day of April, 1908, on which latter day it is set out that plaintiffs and defendant appeared by their attorneys, as well as in person, and the defendant George filing a counterclaim, the case was tried by the justice, who found for the plaintiffs and against the defendant for $ 154 and against the defendant George on his counterclaim, further finding that the defendant George was erecting the building under contract with the owners, etc. It is also recited in the judgment of the justice who tried the case, that the justice found that the plaintiffs did, on January 9, 1908, "file their account and statement of cause of action herein and commenced this suit." From this judgment the Moerschels, as owners of the property, appealed to the circuit court. There, on the case being called for trial and a jury impanelled, the appellants moved to dismiss the case for want of jurisdiction in the justice, it being contended that by the notice filed with their claim for the lien, plaintiffs, respondents here, had stated that they would, on the 9th day of January, 1908, institute suit for the purpose of enforcing the payment of the indebtedness set out in the account and to enforce their claim for a mechanic's lien before the justice of the fourth district, St. Louis, while it appeared by the transcript of the docket of that justice that the statement of the cause of action in the suit was filed and summons issued to the constable on the 10th of January, 1908. The court indicating that it would sustain this motion, counsel for plaintiffs below, respondents here, asked leave to introduce evidence to show when the petition was actually filed with the justice. The court denied this and discharging the jury, sustained the motion to dismiss. Afterwards, and in due time, plaintiffs below filed their motion to set aside this order and judgment of dismissal, on the grounds that the court erred in dismissing the cause for want of jurisdiction in the justice; that the court erred in not allowing plaintiffs to show that the petition and statement of the cause was filed before the justice on the day specified in the notice filed in the office of the clerk of the circuit court, and that it erred in dismissing the cause for want of jurisdiction, because, as it is averred in the motion, the transcript of the justice before whom the cause of action was brought does show that the suit was instituted on the day specified in the notice filed in the office of the clerk of the circuit court in the city of St. Louis. The court sustained this motion, set aside its order of dismissal and ordered the cause reinstated. From this latter order the defendants Wm. E. and Minnie K. Moerschel duly perfected their appeal.
Judgment affirmed and cause remanded.
Geo. W. Lubke and Geo. W. Lubke, Jr., for appellants.
(1) The jurisdiction of a justice of the peace to enforce a claim of mechanic's lien is special and every requisite to its exercise must appear on the face of the record. Heimberger v. Harrison, 83 Mo.App. 544; Ruckert v. Richter, 127 Mo.App. 668. No presumption will be indulged in favor of the jurisdiction of a justice of the peace. Bick v. Lanham, 123 Mo.App. 268; State v. McCord, 124 Mo.App. 68. (2) The filing of notice in the office of the clerk of the circuit court, stating the date when and the justice of the peace before whom suit will be brought to enforce a claim of mechanic's lien, is a jurisdictional fact. R. S. 1899, sec. 3893. And the record must show the suit to have been brought on the date specified in the notice filed with the clerk. Ewing v. Donnelly, 20 Mo.App. 6; Schroeder v. Mueller, 33 Mo.App. 28; Wise v. Loring, 54 Mo.App. 264; McDonnell v. Nicholson, 67 Mo.App. 408; Fabien v. Grabow, 134 Mo.App. 193. (3) The justice, having acquired no jurisdiction of this case, the circuit court acquired none on appeal. Bank v. Doak, 75 Mo.App. 336; Fabien v. Grabow, 134 Mo.App. 193. (4) The findings of Justice Pfeffle and his judgment are not evidence of the facts therein recited, because his judgment was vacated by the appeal to the circuit court. Lee v. Kaiser, 80 Mo. 431; Earl v. Hart, 89 Mo. 263; Holdridge v. Marsh, 28 Mo.App. 283.
William S. Campbell for respondent.
(1) The jurisdiction of a justice of the peace to enforce a mechanic's lien is sufficiently shown, if the facts necessary to confer jurisdiction appear by some part of the record of their proceedings. Wissman v. Meagher, 115 Mo.App. 82; Sappington v. Lenz, 53 Mo.App. 44; State v. Schneider, 47 Mo.App. 669; State v. Cauthorn, 40 Mo.App. 94. (2) If the petition is actually filed within the time prescribed in the notice, and with the justice named therein, it is sufficient, although the summons may have been issued at a later date, it not being essential that the summons issue on the date of filing. McDonnell v. Nicholson, 67 Mo.App. 408. The filing of a paper is its actual delivery to the officer, whose duty it is to file it without regard to any action he may take thereon, and the true date of the act may be shown without any filing mark. Grubbs v. Cones, 57 Mo. 83; Collins v. Kammann, 55 Mo.App. 464; Bensley v. Haeberle, 20 Mo.App. 648. An ambiguous entry in a justice's docket ought to be construed, if it can be, so as to uphold his judgment. Roach v. Montserratt Coal Co. , 71 Mo. 398. (3) It is a well-settled principle that, where the jurisdiction of the court depends upon a fact which the court is required to assert and settle by its decision, its decision is conclusive against collateral attack. Shanklin ex rel. v. Francis, 67 Mo.App. 457.
REYNOLDS, P. J. (after stating the facts.)
The action of the learned trial judge in dismissing the case on the grounds stated in the motion to dismiss was evidently taken inadvertently and was properly set aside by him.
Our statute, section 6519, chapter 91, article 22, Revised Statutes 1899, now section 7617, chapter 65, article 9, Revised Statutes 1909, provides that justices of the peace in cities with 300,000 inhabitants or over "shall have jurisdiction in all actions brought to enforce mechanics' liens, as provided by law for enforcing such liens in the circuit court, when the amount of balance claimed to be due does not exceed $ 500," and that "all existing provisions of law now applicable to justices of the peace and the practice and procedure in their courts shall be applicable in all respects to the justices elected under this article."...
To continue reading
Request your trial