Standard Electrical Co. v. Lugar
| Decision Date | 08 November 1943 |
| Citation | 175 S.W.2d 58,237 Mo.App. 1281 |
| Parties | Standard Electrical Company, H. L. Hoecker, Operator, Plaintiff in Error, v. Mrs. Marion Lugar, Defendant in Error |
| Court | Kansas Court of Appeals |
Writ of error to Nodaway Circuit Court; Hon. Ellis Beavers, Judge.
Affirmed.
R F. Mumford and Ellis G. Cook for plaintiff in error.
(1) The motion to quash is the proper remedy. Dewey v. Union Power & Light Co., 83 S.W.2d 205; Kristanick v Chevrolet Motor Co., 70 S.W.2d 890, 894; Barkard v Hann, 17 S.W.2d 636; Robinson v. Martin Wunderlich Const. Co., 72 S.W.2d 127; Platies v. Theodorow Bakery Co., 79 S.W.2d 504; Harrison v. Slaton (Mo.), 49 S.W.2d 31. (2) The notice to the parties in writing, or the posting of the notice, is jurisdictional and indispensable. Sec. 2642, R. S. Mo. 1939. (3) Jurisdiction of the justice may be challenged in the circuit court. Fabien v. Grabow, 134 Mo.App. 193, 114 S.W. 80. (4) The jurisdiction of the circuit court is not based upon any judicial act of the justice, but is based upon the power of the justice originally to hear the issue presented to him. State ex rel. v. Mosman, 112 Mo.App. 540, 87 S.W. 75. (5) Failure to give written notice of a change of venue cannot be considered. Idalia Co. v. Norman, 184 Mo.App. 146, 168 S.W. 643. (6) If it appears from the whole record that the justice had no jurisdiction, the circuit court acquired none on appeal. Iba v. Railway, 45 Mo. 469. (7) A justice's judgment failing to comply with the statutory requirements is not void unless he acted entirely without jurisdiction. Meyer v. Singletary, 75 Mo.App. 481. Where a transcript of judgment in the justice court is filed in the circuit clerk's office, the circuit court has jurisdiction to order the same modified so as to conform to the statute. Carter v. Exposition Co., 124 Mo.App. 530, 102 S.W. 6. (8) If answer is a general denial, and no demand made for a return of the property, judgment must be against the plaintiff and not against him and his sureties. Drug Co. v. Dart, 7 Mo.App. 590; Cummings v. Lbr. Co., 130 Mo.App. 557, 109 S.W. 68. If defendant desires to recover possession of the property it is his duty to claim and demand return by answer. Cartmell Co. v. Sikes, 83 Mo.App. 565. (9) If Justice James W. Decker ever had jurisdiction, he lost it by continuing the case eight months. Publ. Co. v. Sleater, 130 S.W.2d 192.
Livengood & Weightman for defendant in error.
(1) The justice had jurisdiction to render this judgment under the plain provisions of Sec. 2645, R. S. Mo. 1939, which is controlling in this case, and this case is not governed by the provisions of Sec. 2646, R. S. Mo. 1939. Plaintiff in error gave the court jurisdiction by the institution of this suit and jurisdiction once acquired cannot be lost. 15 C. J. 798, 822; State v. Yeager, 157 Mo.App. 328. (2d) Furthermore, plaintiff in error having instituted this suit and obtained the property is now estopped to question the jurisdiction of the justice. State ex rel. v. Ellison (Mo.), 191 S.W. 49, 51, 52; Abbington v. Steinberg, 86 Mo.App. 639; Development Co. v. Norman, 184 Mo.App. 152, 154. (3) Plaintiff in error cannot institute the suit, take a change of venue, close his eyes to all subsequent proceedings and then claim lack of jurisdiction, especially where he has notice. Development Co. v. Norman, 184 Mo.App. 154. (4) Plaintiff in error having instituted the suit, and obtained possession of the property, cannot thereafter abandon his cause of action and thereby escape a judgment against him for the return of the property and against him and his sureties for the damages caused by his actions. Munley v. King, 40 Mo.App. 534; Ranney v. Thomas, 45 Mo. 111; Collins v. Hough, 26 Mo. 149; Berghoff v. Heckwolf, 26 Mo. 511. (5) Even where no answer or counterclaim is filed, the court had jurisdiction to adjudge the return of the property to the defendant in error and to render judgment against plaintiff in error and his sureties on the bond. Gurley Bros. v. Bunch, 130 Mo.App. 665, 668; Wheaton Motor Co. v. Duckett, 120 S.W.2d 196, 197. (6) Defendant in error, having been adjudged the return of the property, was also entitled to a judgment against plaintiff in error and his sureties on the replevin bond. Cummings v. Lumber Co., 130 Mo.App. 557. (7) The motion to quash will not lie in this case. Such motion constitutes a collateral attack on the judgment. Hays v. Hulet (Mo. App.), 14 S.W.2d 699; Burkhard v. Hahne, 17 S.W.2d 636; 34 C. J., par. 856, pp. 555-558 and cases cited; Abernathy v. Mo. Pac. Ry. Co., 228 S.W. 486.
This cause reaches this court on a writ of error directed to the Circuit Court of Nodaway County, Missouri. The plaintiff in error was plaintiff in the lower court and defendant in error was defendant in the lower court, and they will be referred to in that manner.
The facts giving rise to the matters now before us are: In August, 1941, plaintiff instituted a replevin suit in the Justice Court of one Roelofsom, a Justice of the Peace of Polk Township, in Nodaway County, to recover the possession of an electric washing machine which had previously been sold to defendant under an installment payment note and chattel mortgage, which note was then in default. Some time thereafter, defendant was granted a change of venue from the Justice Court of Roelofsom to Justice Ray Eckles in the same township and county. On September 10, 1941, the plaintiff applied for and was granted a change of venue from the Court of Justice Eckles to the Justice Court of James W. Decker, a Justice of the Peace for Hughes Township, Nodaway County. Justice Decker received the transcript and papers from Justice Eckles some time in September. On October 4, 1941, Justice Decker entered this order of record: "It now appearing that it is impossible for this court to have a trial except on Saturdays and further appearing that many of the witnesses cannot appear on Saturday, it is now necessary that this cause be and it is now continued until May 20, 1942." The next record made by Justice Decker is: "May 2, 1942, telephoned plaintiff and attorney and by agreement of both parties, trial set for May 5, 1942, at one o'clock in the afternoon . . ." The next entry of record is of May 5, 1942, to the effect that one Horace Merritt (an attorney), representing plaintiff, advised the Justice that plaintiff cannot be ready for trial on the 5th of May "and upon his request cause again continued until May 20, 1942." The next entry is "May 9, 1942, advised plaintiff H. L. Hoecker and attorney for defendant by mail this date of resetting of cause for May 20, 1942." On May 20, defendant appeared in the justice court but the plaintiff came not, and the justice found that that plaintiff was not entitled to the possession of the washing machine described in the replevin suit and ordered return thereof, and assessed the value at $ 100 and damages for taking and detention at $ 150, and rendered judgment accordingly. A transcript of the judgment was filed in the Circuit Court of Nodaway County, execution issued and levy made on plaintiff's property. Whereupon plaintiff filed motion to quash the transcript of the record made in the Court of Justice Decker and to quash the execution and levy thereunder made by the sheriff, for the reason that the judgment rendered by Justice Decker was absolutely void for want of jurisdiction of the justice, as shown by the face of the transcript of judgment. A hearing was had on such motion and overruled by the circuit court, and plaintiff sued out writ of error lodging the cause in this court.
Plaintiff in error asserts He contends not, because the record of the justice court "fails to disclose any entry of the fact that he sent, or caused to be sent out notices in writing, or to post the notices in his office of the change of venue fifteen days before the time fixed for such trial." The burden of his argument is...
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