Smith v. Simpson

• Citation: 80 Mo. 634
• Parties: SMITH et al., Appellants, v. SIMPSON.
• Decision Date: 31 October 1883
• Court: United States State Supreme Court of Missouri

80 Mo. 634

SMITH et al., Appellants,

v.SIMPSON.

Supreme Court of Missouri.

October Term, 1883.

Appeal from Madison Circuit Court.--HON. JAMES D. Fox, Judge.

AFFIRMED.

B. B. Cahoon for appellant.

The justice had jurisdiction of the subject matter of the suit. R. S. 1879, § 2835. And the action of the defendant in subpœnaing witnesses and in filing a motion to rule the plaintiff to give security for costs, constituted such an appearance in the cause, as to give jurisdiction of his person. R. S. 1879, §§ 3052, 2849, 2837, 348; Page v. Railroad Co., 61 Mo. 79; Bohn v. Devlin, 28 Mo. 319; Orear v. Clough, 52 Mo. 56; Dellinger v. Higgins, 26 Mo. 182; Hembree v. Campbell, 8 Mo. 572; Chouteau v. Allen, 70 Mo. 353; Peters v. Railroad Co., 59 Mo. 408; Fedder v. Schroeder, 59 Mo. 366; Griffin v. Van Meter, 53 Mo. 431; Market St. B'k v. Stump, 2 Mo. App. 547; Davis v. Wood, 7 Mo. 162; Meyers v. Woolfolk, 3 Mo. 246; Barnett v. Lynch, 3 Mo. 261; Hurlett v. Nugent, 71 Mo. 135; Evans v. King, 7 Mo. 411; Whiting v. Budd, 5 Mo. 447; Griffin v. Samuel, 6 Mo. 50; Atwood v. Reyburn, 5 Mo. 533.

Jno. E. F. Edwards for respondent.

EWING, C.

This is a suit commenced before a justice of the peace in St. Michael township, Madison county, by summons, which was returned by the constable as served in St. Michael township, Madison county.

It appears that, at the time, plaintiffs were residents of Bollinger county, and the defendant a resident of St. Francis county. The suit was to recover $25 for the alleged conversion of a “steer” by the defendant. Prior to the return day of the summons the defendant procured subpœnas for his witnesses to be issued by the justice; had himself appointed special constable for the service thereof; and on the return day of the summons the defendant made return, in writing on the subpœna, of the service thereof on his witnesses, who also resided in St. Francis county, and marked his fees thereon, $3.85, for serving them. On the return day the defendant filed a motion to rule the plaintiffs to give bond for costs, upon the grounds as follows: “The defendant, for the one purpose only, comes and moves the court to require plaintiffs to give security for costs, 1st, Because plaintiffs are not residents of said county. 2nd, That plaintiffs have no property in said county subject to execution.” The bond for costs was thereupon given. Whereupon the defendant filed his motion to dismiss, (appearing, as alleged in the motion, for that purpose only,) “upon the ground that the court is without jurisdiction of the person of both the plaintiffs and defendant; the former being residents of Bollinger county, and the latter a resident of St. Francis county.” The justice of the peace overruled this motion; the defendant retired, and judgment was taken against him by default, from which he appealed to the circuit court. On the calling of the case in the circuit court, the defendant renewed his motion to dismiss for want of jurisdiction, for the same reasons set forth above, which motion was sustained, and the plaintiffs appealed to this court.

In support of the motion to dismiss, the evidence on both sides tended to show, and it was admitted, that neither plaintiffs nor defendant were residents of Madison county.

I. Under this state of facts, it is insisted by the appellants that there was such appearance by the defendant as waived the question of jurisdiction. That filing motion for costs, procuring the issue of subpœnas for witnesses, preparing for trial, and being present on the day of trial with his witnesses, is a waiver of the jurisdiction of the court. That the action of the court in sustaining the motion to dismiss was error; and cites section 3052, Revised Statutes 1879, as being decisive of the question. That section is as follows: “Upon the return of the justice being filed in the clerk's office, the court shall try and determine the same anew, without regarding any error, defect or other imperfection in the original summons, or the service thereof, or on the trial, judgment, or other proceedings of the justice or constable in relation to the cause.” I cannot agree with the learned counsel for appellants in the construction of this section. The errors, defects and imperfections refer to the informality of the summons, or the service thereof, on the defendant; or to some informality in the service of papers by the constable or justice in the trial, or in making up his judgment. It would hardly be contended, that if no service or appearance of the defendant appeared upon the transcript of the justice, and an appeal was granted on his application, the circuit court could acquire jurisdiction and try the case, unless the defendant should come into court and enter his voluntary appearance, or should so move in the case that his act would waive the necessity of summons. That would amount to judgment without notice, which our law does not permit. And, therefore, the section quoted does not apply in a case like this. Here it is a question of jurisdiction of the person which cannot be acquired, unless with notice, or a waiver thereof, either directly or constructively.

II. But the main question in this case is, did the justice have jurisdiction at all, even though the summons and its service were ever so formal. It is well settled that courts of inferior and limited jurisdiction, not proceeding according to the course of the common law, are confined strictly to the authority given. State v. Metzger, 26 Mo. 65; Hansberger v. Pacific R. R. Co., 43 Mo. 196; 9 Wheat. 549. Justices of the peace then must get their authority from the statute. That fixes the manner and place of bringing the suit, and prescribes the territorial jurisdiction in which suits before justices may be maintained. Section 2839, Revised Statutes, provides that: “Every action shall be brought before some justice of the township, either: 1st, Wherein the defendants, or one of them, resides, or in any adjoining township; or, 2nd, Wherein the plaintiff resides, and the defendant, or one of them, may be found; 3rd, If the defendant is a...