Patchen v. Durrett
| Decision Date | 16 January 1906 |
| Citation | 92 S.W. 721,116 Mo.App. 437 |
| Parties | PATCHEN, Respondent, v. DURRETT, Appellant |
| Court | Missouri Court of Appeals |
Appeal from Lewis County Circuit Court.--Hon. Edwin R. McKee, Judge.
AFFIRMED.
Judgment affirmed.
Richard J. McNally for appellant.
This is an action brought before a justice of the peace to establish an agister's lien under sections 4228, 4229 R. S. 1899. The complaint, which appears in the abstract, failed to aver a necessary jurisdictional fact, to-wit, that plaintiff was a resident of LaBelle township, Lewis county, in which the suit was brought. This is an action in derogation of the common law and is strictissimi juris and can receive no help from intendments, but any matter necessary to confer jurisdiction must appear on the face of the proceedings. Bank v Barse, 61 Mo.App. 143; Peed v. Barker 61 Mo.App. 556. This statute must be strictly construed, and in this respect it is like mechanics' and landlord's liens. Stone v. Kelly, 59 Mo.App. 214. While the Supreme Court has held that amendments may be allowed to supply jurisdictional facts (82 Mo. 106), this has reference only to ordinary actions before justices of the peace. Johnson v. Fischer, 56 Mo.App. 552. Court not allowed to supply jurisdictional omission. It is coram non judice. Corrigan v. Morris, 43 Mo.App. 456. A circuit court's jurisdiction on appeal is derivative only. Want of jurisdiction may be taken advantage of at any stage. Gideon v. Hughes, 21 Mo.App. 528. The record in an action before a justice of the peace in St. Louis to establish a stable keeper's lien, must show the jurisdictional fact that the action was brought before a justice of the peace of the ward in which plaintiff resides. Burns v. Lidwell, 6 Mo.App. 192. In eminent domain recital of jurisdictional facts must affirmatively appear upon the face of the record. Nothing will be supplied by intendment or implication. Jones v. Zink, 65 Mo.App. 412.
Dowell & Simpson for respondent.
The court did not err in permitting respondent to amend the statement, filed before the justice. Section 4229, R. S 1899; Section 4236, R. S. 1899; Section 4079, R. S. 1899; Dowdy v. Wamble, 110 Mo. 280; 100 Mo.App. 728; Kincaid v. Griffith, 64 Mo.App. 676; Bank v Doak, 75 Mo.App. 332; Mitchell v. Railway, 82 Mo. 106; Land Co. v. Jeffries, 40 Mo.App. 360.
This action was instituted before a justice of the peace for the purpose of enforcing the agister's lien given by the statutes (R. S. 1899, art 2). The complaint contained no averment to show that the plaintiff Patchen resided in the township wherein the action was begun; that is to say, in LaBelle township. Judgment was rendered by default before the justice of the peace in favor of the plaintiff and the cause was appealed to the circuit court. The defendant appeared in the latter court and filed a motion to dismiss the case for the reason that the court had no jurisdiction of it, as the justice of the peace had no jurisdiction in the first instance. Plaintiff was permitted to amend his complaint by inserting an averment that he was a resident of LaBelle township; and, after this amendment was made, the court overruled the motion to dismiss. A jury trial followed, which resulted in a verdict for the plaintiff and judgment accordingly. The defendant appealed to this court. It is assigned for error that the plaintiff was wrongly permitted to amend his original statement. The position taken by the defendant is that the proceeding was begun before a court of inferior jurisdiction and seeks to enforce a special statutory right, unknown to the common law, by a summary method different from the ordinary procedure; hence, that unless every jurisdictional fact was stated in the original complaint, the justice had no jurisdiction; and as the jurisdiction of the circuit court on appeal had to be derived from that of the magistrate, no amendment of the complaint was permissible, but the proceeding should have been dismissed on defendant's motion. The proposition that the facts requisite to give the justice jurisdiction of the cause should have been stated, is sound; as the agister's lien is of statutory creation and the remedy to enforce it summary. [Schultheis v. Nan, 4 Mo.App. 592; Burns v. Lidwell, 6 Mo.App. 192; Stone v Kelley, 59 Mo.App. 214.] When courts of limited and inferior jurisdiction are exercising special statutory powers in a mode of procedure unknown to the common law, all jurisdictional facts must affirmatively appear on the face of the papers. [State v. Metzger, 26 Mo. 65; Haggard v. Railway Co., 63 Mo. 302.] And the same rule has often been applied to superior courts when the right at issue was purely statutory and a new method of enforcing it was provided by the statute. [Werz v. Werz, 11 Mo.App. 26 at 26-32; Galpin v. Page, 18 Wall. 350, 371, 21 L.Ed. 959; Pulaski County v. Stuart, 28 Gratt. 872.] This rule governs actions before justices under our statutes giving double damages against railway companies for killing stock. [Haggard v. Railway Co., supra.] Yet in such an action, an amendment of the complaint is permitted in the circuit court, to show the animal was killed in the township wherein the action was brought or an adjoining township, so as to complete the statement of the facts essential to the jurisdiction. [Mitchell v. Ry. Co., 82 Mo. 106.] ...
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