State ex rel. General Motors Acceptance Corp. v. Brown

• Decision Date: 12 April 1932
• Docket Number: 31329
• Citation: 48 S.W.2d 857,330 Mo. 220
• Parties: State of Missouri at the relation of General Motors Acceptance Corporation, a Corporation, Relator, v. Darius A. Brown, Judge of the Circuit Court of Jackson County, Missouri, at Kansas City, and Louis Firestone
• Court: Missouri Supreme Court

48 S.W.2d 857

330 Mo. 220

State of Missouri at the relation of General Motors Acceptance Corporation, a Corporation, Relator, v. Darius A. Brown, Judge of the Circuit Court of Jackson County, Missouri, at Kansas City, and Louis Firestone

No. 31329

Supreme Court of Missouri

April 12, 1932

Peremptory writ ordered.

Leon Greenebaum, Dwight Beals and L. A. Laughlin for relator.

(1) By filing a motion to quash the alternative writ and to dismiss the relator's petition, and by failing to make any return as commanded by the alternative writ, respondents must be understood to have filed said motion in lieu of a return, and to have consented that the peremptory writ issue in the event said motion is overruled. State ex rel. Stueve v Reynolds, 266 Mo. 16; Secs. 1532, 1533, R. S. 1929; State ex rel. Attorney-General v. Mo. Pac. Ry. 114 Mo. 283; State ex inf. Attorney-General v. Kansas City, 254 Mo. 515. (2) While the motion to quash contains nothing in the nature of a general demurrer, the relator is willing, in view of the desirability of a decision on the questions of law involved, to treat the motion as if it contained a charge that the allegations of the alternative writ were not sufficient to constitute a cause of action in mandamus. State ex rel. Herman v. County Court, 311 Mo. 173; State ex rel. McGrath v. Wiethaupt, 245 S.W. 574; State ex rel. LaRue v. Hitchcock, 171 Mo.App. 114. (3) Where, as here, an inferior court, upon a preliminary motion heard before trial of the merits determines as a matter of law that it has no jurisdiction of a cause the dismissal of the cause on that ground, if erroneous, may be corrected by mandamus. State ex rel Snow Pump Works v. Homer, 249 Mo. 75; State ex rel. Foraker v. Hoffman, 309 Mo. 638; State ex rel. Fleming v. Shackelford, 263 Mo. 62; State ex rel. Kaiser v. Miller, 316 Mo. 379. The motion to quash cannot question the gravity or importance of the questions involved, where the alternative writ alleges and pleads facts showing that the questions of law are grave and important. (4) Rule 32 of the rules of this court is not applicable in the instant case because -- (a) Relator had no adequate remedy by appeal or writ of error. State ex rel. Snow Pump Works v. Homer, 249 Mo. 75; State ex rel. Foraker v. Hoffman, 309 Mo. 638; State ex rel. Fleming v. Shackelford, 263 Mo. 62; State ex rel. Kaiser v. Miller, 316 Mo. 379. (b) After the court has taken jurisdiction and issued the alternative writ, it will not quash it simply because the relator might also have applied elsewhere, but will retain the case and decide it on its merits. State ex rel. Nolan v. Nelson, 310 Mo. 526; State ex rel. Duraflor v. Pearcy, 29 S.W.2d 83; State ex rel. Orr v. Latshaw, 291 Mo. 600. (c) The validity or legality of the rule is questionable in view of the fact that it attempts to contravene constitutional and statutory provisions relating to the rights, privileges and options of litigants in the choice of their forum. Missouri Constitution, Art. 6, Secs. 3, 8; 15 C. J. sec. 276, pp. 902, 903; State ex rel. v. Withrow, 135 Mo. 376; State v. Robertson, 181 S.W. 987; Pelz v. Bollinger, 180 Mo. 252. (5) If the writ is defective in that it does not allege that relator will suffer any harm, loss or damage (although the facts pleaded, show inevitable harm, loss and damage) the omission may be supplied by amendment. State ex inf. v. Gas Co., 254 Mo. 515; Heather v. City of Palmyra, 311 Mo. 32; State ex rel. v. Bowme, 151 Mo.App. 104; State ex rel. v. Dreyer, 183 Mo.App. 463. (6) The alternative writ states a cause of action in mandamus. (a) It has already been shown that mandamus is a proper remedy if the dismissal for want of jurisdiction was erroneous. (b) The dismissal for want of "jurisdiction" as used by respondents, i. e., because Layton was not validly appointed and held his court at a place not specified by law, assuming such to be the facts, was erroneous. While a validly appointed officer and an authorized locality are both essential to the legal existence of a de jure court, 15 C. J. sec. 1, pp. 715-18; State ex rel. Ballew v. Woodson, 161 Mo. 454, nevertheless, the validity of Layton's appointment by the county court cannot be questioned by respondent Firestone as done below, whether that appointment be valid or invalid, for respondent Firestone's motion to dismiss filed below was a collateral attack on the judgment of the County Court of Jackson County, Missouri, appointing Layton a justice of the peace. State ex inf. Attorney-General v. Tolliver, 315 Mo. 737, 287 S.W. 312. Even though the motion alleged fraud. Abernathy v. Mo. Pac. Ry., 287 Mo. 30; State ex rel Van Hafften v. Ellison, 285 Mo. 301; 34 C. J. 520, sec. 827; 34 C. J. 874, sec. 1284. Layton's court at 310 East 51st Street, Kansas City, Kaw Township, Jackson County, Missouri, if not de jure, was at least a de facto court, and as such its legal existence could not be collaterally attacked or questioned by motion to dismiss such as repondent Firestone filed below. The motion to dismiss as filed below is and must be an attack upon the legal existence of Layton's court as distinguished from error in the exercise of his jurisdiction. Sec. 2352, Chap. 10, R. S. 1929; State ex rel. Duraflore v. Pearcy, 29 S.W.2d 86; Levine v. Marchisic, 270 S.W. 646; State ex rel. South St. Joseph Town Co. v. Mosman, 112 Mo.App. 540. But the legal existence of a court cannot be questioned collaterally upon appeal from a proceeding instituted in that court. State v. Searcy, 46 Mo.App. 421; State v. Searcy, 111 Mo. 236; Gardner v. Gas Co., 154 Mo.App. 674. If not de jure, Layton's court was at least de facto and its proceedings valid: Bouldin v. Ewart, 63 Mo. 330; State v. Peyton, 32 Mo.App. 528; State v. Rich, 20 Mo. 393, and as a de facto court, its existence legally and its right to function cannot be inquired into collaterally in suits between private citizens filed in that court, but only in a proper direct proceeding at the instance of the State. Bouldin v. Ewart, 63 Mo. 330; State v. Peyton, 32 Mo.App. 528; State v. Rich, 20 Mo. 393; State v. Searcy, 46 Mo.App. 421; State v. Searcy, 111 Mo. 236; 15 C. J. p. 875, sec. 215 and Note 46; Burt v. Railroad Co., 31 Minn. 472, 18 N.W. 285; State ex rel. Bales v. Bailey, 106 Minn. 138, 118 N.W. 676; Jenkins v. State, 93 Ga. 1, 18 S.E. 992; State v. Harris, 47 La. Ann. 386, 17 So. 129; Coyle v. Commonwealth, 104 Pa. 117. And, of course, there may be de facto justices of the peace, as well as judges. Fleming v. Mulhall, 9 Mo.App. 71; State ex rel. Liechter v. Miller, 48 Mo. 251. (c) The argument thus far has assumed Layton's court was improperly located, but in fact the location was fully authorized under and in compliance with the law. (1) Sec. 2689, R. S. 1919, does not, like Sec. 2688, R. S. 1919, require the justice to keep his office in the district for which he is appointed. Sec. 2689, R. S. 1919 (now Sec. 2137, R. S. 1929); Sec. 2688, R. S. 1919 (Sec. 2136, R. S. 1929). (2) Sec. 2689, in fact, says the justice is to be appointed for the township. (3) If the court is to be held in the "immediate neighborhood," some courts would hold the justice court legal and others illegal -- on different evidence in different cases. (4) If convenience was uppermost in the minds of the Legislature, why did they subject the electors of elected justices to possibly greater inconvenience than the petitioners for the appointed justice? (5) The history of Sec. 2689 does not show an intention that the court room was to be in the "immediate neighborhood" or more than five miles from another justice. (6) The construction of the law for which respondents contend would establish a court with no fixed territorial boundaries, one whose territorial limits would vary according to the evidence introduced upon collateral attack. (7) Layton was holding his court in exact compliance with the command of his commission, a fact in itself sufficient to distinguish the case from those of Travalant v. Motor Co., 16 S.W.2d 709; Altergott v. O'Connor, 6 S.W.2d 1012; McKenna v. Wittman, 25 S.W.2d 541. (8) If a justice holds his court within the territorial limits established by his commission, the court is legally held. Travalent v. Motor Co., 16 S.W.2d 709. (d) Summary.

OPINION

Frank, J.

Original proceeding in mandamus to compel Honorable Darius A. Brown, Judge of the Circuit Court of Jackson County to set aside an order dismissing the case of General Motors Acceptance Corporation v. Louis Firestone and to reinstate said cause on the docket and proceed to hear and determine same on its merits.

The facts necessary to a disposition of the case are as follows:

General Motors Acceptance Corporation instituted a suit against Louis Firestone before one S. R. Layton, a Justice of the Peace in and for Kaw Township in Jackson County, to recover the sum of $ 261.78 with six per cent interest thereon from August 11, 1928, and $ 40 attorney fees all alleged to be due plaintiff according to the terms of a promissory note executed by said Firestone. Defendant Firestone, although duly served with process, made default and judgment was rendered against him in the sum of $ 301.73. In due time Firestone appealed to the the circuit court where, upon motion filed by him, said cause was dismissed on the ground that the justice court did not have jurisdiction of said cause and hence the circuit court acquired none by the appeal.

The grounds of the motion to dismiss were, in substance, (1) that the action of the county court in appointing S. R. Layton as Justice of the Peace was void, and (2) that the place where said Layton held court and rendered the judgment in question was within five miles of other justice courts in the same township, and was more than three miles from his residence...