Noll v. Alexander

• Citation: 282 S.W. 739
• Decision Date: 22 April 1926
• Docket Number: No. 4002.,4002.
• Parties: NOLL v. ALEXANDER et al.
• Court: Court of Appeal of Missouri (US)

282 S.W. 739

NOLL v. ALEXANDER et al.

No. 4002.

Springfield Court of Appeals. Missouri.

April 22, 1926.

Appeal from Circuit Court, Phelps County; W. E. Barton, Judge.

Action by J. S. Noll against T. L. Alexander and others. From the judgment sustaining a demurrer to his petition, plaintiff appeals. Reversed and remanded, with directions.

George T. Humphries and N. Burroughs, both of West Plains, and J. P. Swaim, of Mountain View, for appellant.

B. L. Rinehart, of West Plains, for respondents.

COX, P. J.

Action for false imprisonment. Demurrer to the petition sustained. Plaintiff refused to plead further, and judgment was rendered against him, and he appealed.

The petition alleges that defendants caused a complaint to he lodged against him in the police court of the town of Mountain View, a city of the fourth class, in Howell county, Mo.; that he was convicted in that court and a fine of 81 assessed against him; that he appealed to the circuit court; that in the circuit court of Howell county a change of venue was awarded to Greene county; that, when the case was called in the Greene county court, the judgment of the city court of Mountain View was affirmed for the failure of this plaintiff, who was defendant in that case, to appear; that defendants then caused a writ of commitment to he issued on said judgment and this plaintiff imprisoned thereunder; that the Greene county court was without jurisdiction to render said judgment of affirmance because this plaintiff, who was the defendant in that case, was not present in court, neither was he under any bond requiring him to appear in that court; that this plaintiff had not entered into any recognizance to appear in the Greene county court, and for that reason the order of the Howell county court in granting a change of venue to Greene county was void, and hence the Greene county court did not have jurisdiction of either the cause or the person of this plaintiff; that, by reason of the judgment of affirmance being void, the writ of commitment Was void and plaintiff's imprisonment thereunder illegal and wrongful. A demurrer to this petition was filed on the ground that the petition stated no cause of action and that the action was barred by the statute of limitations. The demurrer was sustained, and plaintiff appealed.

The petition does not state the date of the imprisonment of plaintiff; nor does the exact date of the filing of the petition and the suing out of process thereon in this case appear on the face of the petition. The facts which would show that the action is barred, if it be barred, do not appear on the face of the petition, and hence the question of a bar by the statute of limitations could not be raised by demurrer, but could only be raised by answer.

The question of the jurisdiction of the Greene county court to enter a judgment affirming the judgment of the police court of the city of Mountain View is a more serious question. The facts alleged to show want of jurisdiction in that court are substantially as follows: That this plaintiff was convicted in the police court in the city of Mountain View for violating a city ordinance. He appealed to the circuit court of that county and gave bond for his appearance there. That court granted a change of venue to Greene county, but did not require the defendant to execute a bond for his appearance in the Greene county court, and he did not appear in that court. On these facts it is contended that the Greene county court did not acquire jurisdiction to render a judgment against the plaintiff in this case, who was the defendant in that case.

After the case reached the circuit court of Rowell county, the procedure in that court, and any court to which the cause might be sent on change of venue, was required to be the same as it would be if the case were appealed to the circuit court from the court of a justice of the peace upon a conviction for a misdemeanor. Rev. St. 1910, § 8441. This means that from the time the appeal from the city court reached the circuit court all subsequent proceedings should be governed by the procedure in criminal cases. Looking to the provisions of the statute in relation to changes of venue in criminal cases, we find the following: Section 3978, Rev. St. 1919, provides that, when a change of venue is granted to the defendant and he is not in custody, he shall enter into a recognizance for his appearance in the court to which the cause may be sent. Section 3981 provides that, if the defendant be in custody, the court shall make an order directing the sheriff to remove the defendant to the county to which the cause is sent and deliver him to the sheriff of that county. Section 3980 provides that —

"No order for the removal of a cause shall be effectual in the case of any defendant not in confinement or custody, unless a recognizance, taken as herein directed, be entered into in open court, or delivered with the order and filed with the clerk of the court, nor unless such order be delivered before any juror is sworn in the cause., * * *"

In this case the defendant was not in custody when the change of venue was granted and did not give bond for his appearance in the court in Greene county and did not appear in that court. The petition in this case alleges these facts in order to show that the court in Greene county, to which the cause w as sent on change of venue, did not acquire jurisdiction to enter a judgment of affirmance against the defendant in that case. That judgment of affirmance was a personal judgment. Two things are necessary to confer jurisdiction upon a court to render a personal judgment: Jurisdiction of the subject-matter, and jurisdiction of the person against whom the judgment is rendered. If a court has jurisdiction to hear and determine causes of the same nature as the one that may be under review, then jurisdiction of the subject-matter of the particular case, if it be a civil case, is conferred when the petition is filed, and jurisdiction of the person is acquired when process is served. In a criminal case jurisdiction of the subject-matter of the particular case is vested when the indictment or information is filed. Jurisdiction of the person is acquired when the party charged is arrested on warrant or voluntarily appears in court and submits himself to its jurisdiction. In the case which we now have under review the defendant appealed from the city court and gave bond for his appearance in the circuit court, and also appeared there, so that court had jurisdiction of his person, as well as jurisdiction of the cause. When the venue was changed and the cause sent to Greene county, the order changing the venue eo instanti vested the court of Greene county with jurisdiction of the cause. State ex rel. v. Lay, 29 S. W. 999, 128 Mo. 009, 616; State v. Thomas, 256 S. W. 1028, 301 Mo. 603, 613; State ex rel. Montgomery v. Hoffmann (Mo. Sup.) 257 S. W. 129.

The provisions of the statute requiring, the bodily delivery of defendant to the jailor of the county to which a case is sent, or that he enter into recognizance for his appearance in the court of that county, are for the purpose of transferring jurisdiction of the person of the defendant to that court. Unless the defendant be in custody and be delivered to the jailor of the county to which the case is sent, or gives bond for his appearance, or voluntarily appears in that court, jurisdiction of his person is not acquired. It is contended by appellant that under section 3980, supra, the order granting a change of venue is void, and full...