State Bank of Sugar Creek v. Anderson

• Decision Date: 02 March 1931
• Citation: 36 S.W.2d 138,225 Mo.App. 118
• Parties: STATE BANK OF SUGAR CREEK, RESPONDENT, v. VANCE ANDERSON, APPELLANT
• Court: Kansas Court of Appeals

36 S.W.2d 138

225 Mo.App. 118

STATE BANK OF SUGAR CREEK, RESPONDENT, v. VANCE ANDERSON, APPELLANT

Court of Appeals of Missouri, Kansas City

March 2, 1931

Appeal from Circuit Court of Jackson County.--Hon. Clarence A Burney, Judge.

REVERSED.

R. J Smith for appellant.

No brief for respondent.

ARNOLD J. Bland, J., concurs. Trimble, P. J., absent.

OPINION

ARNOLD, J.

This is an appeal from the action of the trial court in overruling defendant's motion to quash an execution.

The cause originated by the filing of a suit in replevin in the court of a justice of the peace of Kaw Township, Jackson County, Missouri, outside the districts of the regularly elected justices of the peace of said township. There was a judgment for plaintiff which, on appeal, was sustained by the circuit court where the cause was tried. In due time an execution was issued out of the office of the circuit clerk and placed in the hands of the sheriff for collection. Defendant then filed his motion in the circuit court to quash the execution upon the grounds that the justice of the peace, before whom the original suit was heard, failed to enter judgment in the cause, and there is no record of any judgment ever having been rendered and entered on any records of said justice court; that, thereafter an appeal was granted and said justice certified in his transcript of record that a judgment had been entered by him on February 6, 1925, when, in truth and in fact, no such judgment had been entered; that the justice by whom the original judgment is claimed to have been entered, to-wit, W. J. Cairns, "was appointed by the then County Court of Jackson County, Missouri, a justice of the peace in and for Kaw Township, in said Jackson County, to hold court and live in that part of said Kaw Township outside of the regular districts of the eight salaried justices of peace, all as established and authorized by the statute law of this State in such cases made and provided; that said Justice Cairns never resided in the district or territory for which he was so appointed a justice of the peace and kept all his records and maintained his only office in the Ridge Building in Kansas City, Missouri, and in the confines of the district for which the Honorable George F. Roach was duly elected, qualified and officiating justice of the peace in and for said Kaw Township, during all the times herein mentioned; that the action of said Justice Cairns in so maintaining his office and keeping his official records and files outside of the district for which he had been so appointed and assuming to act and perform the duties of said office rendered all his said acts so done and performed illegal, void and of no effect; that all the acts and things so done and performed by said Justice Cairns in this cause were and are for this reason illegal and void."

The motion charges the judgment and all acts and proceedings so held, done and performed by said Justice Cairns, are totally illegal and void, and therefore the said circuit court, by the said appeal, took no jurisdiction of this cause, and the execution aforesaid should be quashed. Testimony was heard by the court on said motion which was overruled, and defendant has duly appealed.

Defendant introduced but two witnesses and plaintiff none. John W. Wofford, deputy county clerk for the records of the county, identified the order of appointment by the county court of W. J. Cairns, as justice of the peace; the same was introduced in evidence, and is as follows:

"COMMISSION.

"Granted to W. J. Cairns.

"State of Missouri, County of Jackson, ss:

"It appearing to the court from the petition this day filed by divers citizens, each of them qualified voters of Kaw Township, Jackson County, Missouri, that they each live more than five miles from the nearest Justice of the Peace in said township:

"It is therefore ordered that the said W. J. Cairns be this day appointed as a Justice of the Peace, in said Kaw Township, Jackson County, Missouri, to reside and hold office outside of any of the eight districts of the Justice of the Peace, in said Kaw Township, for a term expiring on the general election in the year when Justices of the Peace shall be next elected for said Township, as provided by law, at which time said office shall become vacant without any further act of the court.

"In testimony whereof, I, Miles Bulger, presiding judge of the County Court have hereunto set my hand and affixed the seal of said court at office in Kansas City, Missouri, this ninth day of November, A. D. 1922.

"(Seal)

"MILES BULGER,

"Attest: PETER J. KELLY,

"Presiding Judge."

"Clerk of County Court."

The record discloses that W. J. Cairns duly qualified under said certificate of appointment and commission.

M. B Ferguson, testifying for defendant, stated he had been clerk for justices of the peace since 1913, and that he was clerk for justice of the peace W. J. Cairns all the time he was such justice; that said Carins kept his records in the Ridge Building, 911 Main Street, Kansas City, Missouri, and this location is within the lines of Justice Roach, an elective justice in said township; that witness wrote all the records for Cairns in said Ridge Building, and none anywhere else; that all the records were kept, and all processes issued there. Witness could not remember specifically whether the records in the case at bar were written there; did remember he had searched for half a day for the record in this case but could not find it. When witness was asked if he had found any judgment written up, objection was made by defendant and was sustained upon the ground there was in the files a transcript showing the cause was tried on February 6, 1925, both parties...