Rogers v. Davis
| Decision Date | 07 March 1916 |
| Citation | 184 S.W. 151,194 Mo.App. 378 |
| Parties | T. G. ROGERS, Respondent, v. W. E. DAVIS, Appellant |
| Court | Missouri Court of Appeals |
Appeal from New Madrid Circuit Court.--Hon. Charles B. Faris, Judge.
AFFIRMED.
Judgment affirmed.
Riley & Riley and Oliver & Oliver for appellant.
(1) Whatever jurisdiction the justice of the peace of La Font township had in this cause is derived from section 7399, R S. 1909, and unless the facts of jurisdiction do appear in this record the lack of jurisdiction is inherent. Sec. 7399 R. S. 1909; Grant v. Stubblefield, 138 Mo.App. 555; Barnes v. Plessner, 121 Mo.App. 677. (2) The plaintiff must show that the justice of the peace had jurisdiction of the subject-matter. Trimble & Fyfer v Elkin, 88 Mo.App. 229. (3) The appearance of appellant and his taking a change of venue and subsequently trying the cause before another justice of the peace, and then in the circuit court, could not and did not have the effect of waiving a lack of jurisdiction. Grant v. Stubblefield, 138 Mo.App. 555; Beth v. Railroad, 136 Mo.App. 234. (4) In 1905 section 2863, as it appears in the revision of 1909, was enacted. The Legislature evidently had in view the construction that had been given to section 5176, R. S. 1889, in the case of Coffman v. Walton, 50 Mo.App. 404, when it determined to reduce the temptation and possibility of false swearing by fixing and determining how a chattel could be released from a mortgage. Three methods are provided in the statute for releasing chattels by this statute, and we submit that the Legislature intended those methods should exclude the possibility of such loose and unsatisfactory and dangerous testimony about releasing a chattel as is disclosed in this record. The Legislature evidently intended that those methods should be exclusive and prevent the probability of securing a release by such testimony as this record discloses. The trial court, therefore, erred in admitting the alleged declarations of Hawkins about his willingness for Brown, the mortgagor, "to trade" the mare in question. And the court erred in refusing to declare the law as prayed for by the appellant in the second instruction. Sec. 5176, R. S. 1889; Coffman v. Walton, 50 Mo.App. 404; Laws of 1895, p. 179; Sec. 3404, R. S. 1899; Sec. 2863, R. S. 1909. (5) The finding of the court is not responsive to the averments of the complaint. The court did not find that the mare had been wrongfully detained by the appellant. Grant v. Stubblefield, 138 Mo.App. 555; Barnes v. Plessner, 121 Mo.App. 677. (6) The court should have given instruction No. 3, as it is based upon the theory advanced by respondent and is based upon the testimony he offered in support of his theory of ownership in the mare. (7) The record is silent as to whether either of these litigants is a resident of La Font township, in New Madrid county, the township in which the suit was brought, or that the appellant was a resident of an adjoining township. Where this is so, no jurisdiction appears and the cause must be reversed. Authorities under point I.
E. F. Sharp and R. G. Hartle for respondent.
--This is an action in replevin begun before a justice of the peace in La Font township, New Madrid county, Missouri, to recover the possession of a mare and damages for the alleged wrongful detention thereof by defendant. Plaintiff prevailed below, and the case is here upon defendant's appeal.
One Brown purchased the mare in controversy with funds borrowed from one Hawkins, to whom he was otherwise indebted, and to secure the entire indebtedness executed to the latter a chattel mortgage upon the mare and certain other personalty. The mortgage was duly recorded. Thereafter Brown traded the mare to a negro, named Lewis, for a horse, having first obtained Hawkins' consent so to do. It appears that this was done with the intention that a mortgage be executed by Brown to Hawkins upon the horse so acquired by the former, but this was never done. Brown testified that he spoke to Hawkins about it several times, but the latter always deferred the matter.
Though the negro, Lewis, had represented to Brown that the horse acquired by the latter in exchange for the mare was unincumbered, there was in fact a mortgage upon that animal; and, as Brown testified, he subsequently "lost the horse in the round up."
After obtaining possession of the mare, Lewis executed two separate chattel mortgages upon her (which are not here involved), then sold her to Rogers, the plaintiff herein, and left "for parts unknown." Thereafter Hawkins undertook to foreclose the mortgage given him by Brown upon the mare, and at the foreclosure sale defendant Davis (who testified that he was a part owner of the mortgage) became the purchaser. Prior to the sale plaintiff had surrendered possession of the mare to a constable acting in Hawkins behalf, in the belief, it seems, that the officer was seizing her under a writ of replevin, though it does not appear that an action in replevin had been instituted. Plaintiff was present at the sale, and by counsel gave public notice that he claimed the animal, and thereafter instituted this action against the purchaser, Davis.
The action was begun before a justice of the peace in and for La Font township, New Madrid county. The testimony in the case shows that plaintiff resided in Lewis township, of said county, but nothing appears as to the township of defendant's residence. Plaintiff filed a statement in due form before the justice of La Font township, and thereupon the latter issued to the constable of that township an order of delivery and summons; though it appears that the mare was never taken from defendant's possession. The constable's return, upon the order of delivery and summons, is as follows:
"I hereby certify that I executed the within order and summons in the county of New Madrid on the 30th day of April, A. D. 1912, by summons [sic] the said W. E. Davis to trial on the 10th day of May, 1912."
Upon the return day, defendant appeared before said justice of La Font township, and filed a verified application for a change of venue, which was granted, and the cause was thereupon transmitted to a justice of the peace of Lewis township in said county. The last mentioned justice issued a notice of change of venue. It was directed to the constable of Le Sieur township, but appears to have been served upon defendant by the constable of La Font township, who indorsed thereupon the following return, viz:
"I hereby certify, that I have executed the within writ by reading same to W. E. Davis this 28th day of May, 1912, in Le Sieur adjoining La Font township, New Madrid county, Missouri."
Defendant appeared before the justice of Lewis township, and, after two continuances, the cause went to trial before a jury, resulting in a verdict and judgment for plaintiff. Defendant thereupon prosecuted an appeal to the circuit court, where, upon a trial de novo before the court, a jury having been waived, plaintiff again prevailed.
The first question demanding consideration relates to the jurisdiction of the justice of La Font township, before whom the action was instituted. It is urged that, since the action was not brought in the township of plaintiff's residence, with service on the defendant therein, and since it does not affirmatively appear that it was brought in the township of defendant's residence or in an adjoining township, the justice of La Font township was without jurisdiction; and that consequently the justice of Lewis township acquired no jurisdiction by the change of venue, and the circuit court none by appeal.
Section 7399, Revised Statutes, 1909, provides as follows:
"Every action recognizable before a justice of the peace shall be brought before some justice of the township, either: First, wherein the defendants, or one of them, resides, or in any adjoining township; or, second, wherein the plaintiff resides, and the defendants, or one of them, may be found; third, that if the defendant is a nonresident of the county in which the plaintiff resides, the action may be brought before some justice of any township in such county where the defendant may be found; fourth, if the defendant is a nonresident of the State, or has absconded from his usual place of abode, the action may be brought before any justice in any county in this State wherein defendant may be found; and, fifth, any action against a railroad company for killing or injuring horses, mules, cattle or other animals, shall be brought before a justice of the peace of the township in which the injury happened, or in any adjoining township."
Defendant was served with the notice of change of venue in Le Sieur township; and the constable in his return states that Le Sieur township adjoins La Font township. We are informed by counsel that defendant resides in Le Sieur township, but the record before us is silent as to this.
From an early date (see State v. Metzger, 26 Mo. 65) it has been held that since justice courts are of statutory and limited jurisdiction, not proceeding according to the course of the common law, there is no presumption or intendment in favor of their jurisdiction, but facts showing jurisdiction must affirmatively appear. [See Smith v. Rock Company, 132 Mo.App. 297, 111 S.W. 831; Sawyer v. Burris, 141 Mo.App. 108, 121 S.W. 321; Barnes v. Plessner, 162 Mo.App. 460, 142 S.W. 747; Trapp v. Mersman, 183 Mo.App. 512, 167 S.W. 612.]
Respondent relies upon the return of the constable indorsed upon the notice of change of venue issued by the justice of Lewis township, as being a part of the judgment roll, to show that Le Sieur township adjoins La Font township wherein the...
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