State ex rel. Goodson v. Hall
| Decision Date | 25 May 1934 |
| Docket Number | No. 18136.,18136. |
| Citation | 72 S.W.2d 499 |
| Court | Missouri Court of Appeals |
| Parties | STATE OF MISSOURI EX REL. JOHN V. GOODSON ET AL., RELATORS, v. J.D. HALL, JUSTICE OF THE PEACE, RESPONDENT. |
Original proceedings in prohibition by the State of Missouri at the relation of John V. Goodson et al., against J.D. Hall, Justice of the Peace, Hudson Township, Macon County, Missouri.
PRELIMINARY WRIT QUASHED AND FINAL WRIT DENIED.
John V. Goodson for relators.
Mourice M. Winger for respondent.
Relators, on April 26, 1934, applied to this court for a preliminary writ of prohibition against respondent Justice of the Peace, Hudson Township, Macon County, Missouri, forbidding him from holding further cognizance of the case of Penn. Mutual Life Insurance Company, Plaintiff, v. John V. Goodson and Simeon Pagett, Defendants, in a suit in unlawful detainer for the possession of a farm of 433.39 acres in said county. Our preliminary writ was issued, made returnable May 21, 1934. On that day relators and respondent duly appeared, and the latter having filed a demurrer and motion to quash on May 1, 1934; and later, suggestions and briefs, for relators and also for respondent, were heretofore filed, on the question of whether the final writ should issue, and also on the demurrer and motion to quash, the case is submitted on said briefs and set for May 25, 1934.
The unlawful detainer suit was filed on March 5, 1934, in the Justice Court of C.F. Hale, Justice of the Peace in Macon County, Missouri. The petition or complaint was not sworn to as required by Section 2450, Revised Statutes of Missouri 1929. However Justice Hale issued summons for the defendants therein (relators herein), returnable March 12, 1934. On this date defendant Simeon Pagett appeared and filed affidavit applying for, and he obtained, a change of venue, the defendant John V. Goodson making and filing said affidavit, which was done before a jury was sworn or anything else was done in the case. Justice Hale immediately granted the change of venue and sent the case to Justice Hall, the respondent herein, and the case was set down for trial in said court of Justice Hall on March 17, 1934. On that morning and before anything was done in the case, the affidavit of a duly authorized agent of the plaintiff in said unlawful detainer suit was filed and duly attached to the complaint. To this, the defendants objected at the time, and thereupon they filed motion to dismiss the cause, reciting in said motion that defendants appeared "for the purpose of this motion and for that purpose only, and having objected to the attempted amendment of the complaint herein by causing the same to be sworn to and swearing to the same at this time, moves the court to dismiss this cause, because the complaint as filed and served upon the defendants is (not), and was not, sworn to as required by law, and the justice has no jurisdiction to entertain and try this cause for that reason, and for the further reason that the complaint cannot be amended by swearing to the same at this time so as to confer jurisdiction." The justice, overruled the objection and, having allowed the amendment, "the defendants, with their attorney, immediately left the justice court room and made no further appearance contending that the Justices Hale and Hall were both wholly without jurisdiction for the reason neither ever had had jurisdiction of the subject-matter because the complaint was not sworn to when filed originally before Justice Hale."
Thereupon the justice heard the evidence, found for plaintiff and rendered judgment in said unlawful detainer suit and, as the justice was threatening to proceed further and evict defendants (relators herein), this proceeding in prohibition was brought.
The only defect charged against the complaint is that it was not sworn to. This raises but two fundamental questions in this proceeding and they are presented by the pleadings. They are (1) did the respondent Hall have authority to permit the complaint to be sworn to, or amended by having the affidavit attached thereto, (2) did the said justice, after the amendment, have jurisdiction of the subject-matter and of the defendants in the unlawful detainer action? If these are decided in the affirmative, then there is no lack of jurisdiction on which to base or authorize the permanent writ of prohibition, and the demurrer and motion to quash the preliminary writ should be sustained.
In counties like the county of Macon, unlawful detainer is cognizable before any justice of the peace of the county in which detainer is committed. [Section 2449, R.S. Mo. 1929.] In Section 2470 of said statutes, it is provided that:
It will be observed that the amendment involved herein was permitted and made in the justice court, hence decisions holding that amendments as to a jurisdictional matter cannot be made in the circuit court on appeal are not in point. The Section 2470, Revised Statutes of Missouri 1929, is very broad, and so long as the amendment is made in the justice court, we do not see wherein we are authorized to limit the scope of the section by holding that it does not include the amendment permitted in this case. It has been suggested that Justice Hall acquired no jurisdiction over the subject-matter, for want of the affidavit, and, therefore, he could not allow the amendment, as this would require an exercise of jurisdiction. It should not be overlooked that Justice Hall, being in the same county where the alleged unlawful detainer was committed, had, under Section 2449, Revised Statutes of Missouri 1929,...
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Wahl v. Hinchey
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