Securities Acceptance Corp. v. Hill

• Decision Date: 15 July 1959
• Docket Number: No. 47078,No. 1,47078,1
• Citation: 326 S.W.2d 65
• Parties: SECURITIES ACCEPTANCE CORPORATION, Plaintiff-Respondent, v. Leonard L. HILL, Defendant-Appellant
• Court: Missouri Supreme Court

Page 65

326 S.W.2d 65

SECURITIES ACCEPTANCE CORPORATION, Plaintiff-Respondent, v. Leonard L. HILL, Defendant-Appellant.

No. 47078.

Supreme Court of Missouri, Division No. 1.

July 15, 1959.

Casemore, Berman & DeLeve, Gene A. DeLeve, Kansas City, for plaintiff-respondent.

Blackford, Imes, Compton & Brown, Roy W. Brown, Haskell Imes, Kansas City, for defendant-appellant.

HOLMAN, Commissioner.

Defendant has appealed from a judgment for plaintiff in the sum of $603.21. His basic contention is that he was unlawfully deprived of a trial by jury in this cause. A determination of that contention will involve paragraph 4 of Rule 2 of the rules of the Circuit Court of Jackson County, which reads as follows: 'Any party desiring a trial by jury of an appeal from the magistrate court shall file a written request for a jury trial and deposit the sum of $15.00 with the circuit clerk within thirty days after the filing of the transcript on appeal. Failure to do so shall be a waiver of a trial by jury and the case shall be assigned to the jury-waived docket.'

We will first consider the question of our appellate jurisdiction. The sole basis for the contention that appellate jurisdiction is in this court is stated by defendant in his jurisdictional statement as follows: 'The denial of said trial [by jury] violates the defendant's rights under Article I, Section 22(a) of the Constitution of the State of Missouri [V.A.M.S.], which provides, 'The right to trial by jury as heretofore enjoyed shall remain inviolate.' Since the defendant was denied a jury as provided by the constitution, jurisdiction is in the Supreme Court of Missouri.'

In order to properly understand the questions presented we will briefly state the procedure followed in this case. The suit (upon a promissory note) was originally filed in the magistrate court where a judgment was entered for plaintiff in the sum of $603.21 on May 25, 1956. On May 28, defendant appealed to the Circuit Court of Jackson County and on the following day the transcript was filed in the office of the circuit clerk of that county. On July 3, 1956, plaintiff listed the cause as a jury-waived case. On July 6, defendant filed a written request for a jury trial and deposited $15 with the clerk. No order appears in the record concerning that request, but on the face of the instrument is written in ink, 'O.K., HAR,' which defendant contends indicates that the request was approved by Honorable Henry A. Riederer, presiding judge of that court.

On January 3, 1958, the cause was assigned to Division 5. On January 13, 1958, the cause came on for trial in said division, at which time plaintiff's counsel called the attention of the court to Rule 2 of the rules of the Circuit Court of Jackson County (heretofore set out) and took the position that the parties had waived a jury under the provisions of said rule, and moved that the case be transferred from the trial docket for jury cases to the docket for jury-waived cases, pursuant to said rule. The court sustained plaintiff's motion and announced that the case would proceed to trial without a jury. Thereupon, defendant filed an application for change of venue, which was sustained, and the cause was transferred to Division No. 3. On January 15, 1958, defendant filed a 'Motion to Transfer Cause from the Contested Docket to Jury Trial Docket.' That motion, after setting out the procedure followed in the case up to that point, alleged as follows: '7. That said failure to file with the circuit clerk a $15.00 deposit as required by Rule 2 of the rules of the Circuit Court of Jackson County, Missouri, was an oversight on the part of the defendant's attorney, and will in no way prejudice the rights of the plaintiff, but to deny the defendant his right to a jury trial will be prejudicial to defendant's rights.' Said motion was overruled by the court on January 17, 1958.

Thereafter, the defendant filed a petition for writ of prohibition in the supreme court which petition was denied on March 10, 1958. On June 12, 1958, the cause came on for trial and the defendant at that time filed a 'Demand for Jury Trial' in which he contended that he was entitled to a jury trial pursuant to Secs. 10 and 22(a) of Article I of the Constitution of Missouri, and that he had not waived his right to a jury trial under the provisions of Section 510.190 RSMo 1949, V.A.M.S. Said demand was overruled.

The case then proceeded to trial and the defendant not only refused to participate in the trial but he and his counsel left the...