Norton v. Allen

• Citation: 4 S.W.2d 841,222 Mo.App. 149
• Parties: GEORGE P. NORTON, RESPONDENT, v. JOHN H. ALLEN, APPELLANT. [*]
• Decision Date: 23 January 1928
• Court: Court of Appeals of Kansas

4 S.W.2d 841

222 Mo.App. 149

GEORGE P. NORTON, RESPONDENT, v. JOHN H. ALLEN, APPELLANT. ^[*]

Court of Appeals of Missouri, Kansas City

January 23, 1928

Appeal from the Circuit Court of Jackson County.--Hon. Charles R Pence, Judge.

AFFIRMED.

Judgment affirmed.

Daniel E. Bird and Geo. P. Norton, pro se.

Walter W. Calvin for appellant.

BLAND J. Arnold, J., concurs. Trimble, P. J., absent.

OPINION

BLAND, J.

This is an appeal from an order of the circuit court of Jackson county, Missouri, overruling a motion to quash an execution. The execution was issued out of said court on a transcript of a judgment rendered by a justice of the peace of said county. The motion to quash the execution is founded upon an allegation therein that the judgment of the justice was void for the reason that plaintiff failed to file in the justice court a statement of the account or bill of items of the account sued upon; that the statement that was filed was a nullity and, therefore, the justice obtained no jurisdiction over the cause. The statement filed in the justice court omitting caption and signatures, reads as follows:

"Comes now the plaintiff and states that the defendant is justly indebted to him for professional services rendered for and in behalf of the defendant in the sum of five hundred dollars ($ 500), being the balance due on said account; that the same has been demanded and has not been paid, and that it is reasonable.

"Wherefore, plaintiff prays judgment against the defendant in the sum of five hundred dollars ($ 500) and the costs of this action.

The facts in reference to what occurred while the case was pending in the justice court, show that defendant's attorney considered the statement insufficient and lodged in the justice court a motion requiring plaintiff to file "an itemized account of the legal services alleged to have been rendered," "setting out the nature and character of such services, the date when the same were rendered and the charges therefor," and the payments made upon the account. It seems that this motion was never acted upon by the justice but plaintiff, who was and is an attorney at law, drew an amended statement setting out in great detail the legal services rendered to the defendant therein by him, together with the dates and items of the charges and payments, and that a copy of this statement was mailed to defendant's counsel on October 8, 1926, who received it in due time. The case was set for trial in the justice court on October 8, 1926, and by an agreement between plaintiff and attorney for defendant, the case was continued. Defendant's counsel testified in the circuit court that he understood the case was to be continued until October 22d whereas plaintiff testified that the agreement was that it was to be continued to October 15th. The case was in fact continued to October 15th when defendant and his counsel failed to appear and judgment was taken by default against the defendant.

At the trial on the motion to quash, defendant introduced in evidence the original statement filed in the justice court which we have set out in full. Over the objection of defendant, plaintiff was permitted to show that an amended statement of the kind above described was actually filed before the justice prior to the trial of the case therein and that the same was marked filed. However, it would appear that the amended statement was not among the papers in the case in the justice court and there is no record therein of its having been filed.

Defendant insists that the justice acquired no jurisdiction of the cause for the reason that the action was founded upon an account and no bill of items of the account was filed before the justice, and the original statement filed in the justice court is insufficient because it did not contain a bill of items and no bill of items was filed therewith; that in any event the statement was insufficient to give the court jurisdiction. The motion to quash the execution is a collateral attack upon the judgment of the justice. In Enterprise Furniture & Carpet Outfitting Installment Co. v. Davidson, 244 S.W. 949, 950, the court said--

"The general rule in respect to jurisdiction is that if the court has jurisdiction of the parties and the subject-matter or the cause of action, its judgment cannot be impeached in a collateral proceeding for errors or mere irregularities. [Colvin v. Six, 79 Mo. 198; Hardin v. Lee, 51 Mo. 241; Merrick v. Merrick, 5 Mo.App. 123.] In the last case it is said at page 126:

" 'Where a judgment of a court which has jurisdiction of the subject-matter and of the parties is either erroneous or irregularly entered, but stands unreversed and unvacated, and with no attempt made to supersede, alter, or in any way reform it, it would seem clear, on principle, that an execution issued on it cannot be quashed on the ground of error or informality in the judgment.'

"Such an irregular or erroneous judgment may only be corrected on appeal. That a motion to quash, such as was filed in this case under the circumstances, is a collateral attack upon the judgment, there is no question. [Kansas City ex rel. Pryor v. Winner, 58 Mo.App. 299, 302; 1 Black on Judgment (2 Ed.) par. 253.]"

Section 2736, Revised Statutes 1919, provides for the filing before the justice in certain instances of the written instrument, if any, executed by the defendant in which case no other statement shall be required. However this section further provides that "if the suit is founded on an account, a bill of items of the account shall be filed; in all other cases, a statement of the facts constituting the cause of action, and the amount or sum demanded, shall...