State ex rel. JCA Architects, Inc. v. Schmidt, 69938

• Decision Date: 14 June 1988
• Docket Number: No. 69938,69938
• Citation: 751 S.W.2d 756
• Parties: STATE ex rel. JCA ARCHITECTS, INC., Relator, v. The Honorable Gary SCHMIDT, Judge, Circuit Court, Moniteau County, et al., Respondents.
• Court: Missouri Supreme Court

Page 756

751 S.W.2d 756

STATE ex rel. JCA ARCHITECTS, INC., Relator, v. The Honorable Gary SCHMIDT, Judge, Circuit Court, Moniteau

County, et al., Respondents.

No. 69938.

Supreme Court of Missouri,

En Banc.

June 14, 1988.

David A. Johnston, Craig A. Van Matre, Columbia, for relator.

W. Gary Drover, Camdenton, for respondents.

BLACKMAR, Judge.

The relator filed a suit to enforce an architect's lien in the Associate Division of the Circuit Court of Camden County. The petition sought recovery of $2,615.94 plus attorneys' fees, plus interest. The defendants filed a counterclaim for $11,000. The case came on for trial before The Honorable Mary Dickerson, Associate Circuit Judge, who entered judgment for the defendants on the lien claim, and also for the defendants on the counterclaim for $1000 actual and $2000 punitive damages. The court treated the case as one in which trial de novo was authorized under § 512.180, RSMo 1986, which reads as follows:

1. Any person aggrieved by a judgment in a civil case tried without a jury before an associate circuit judge, other than an associate circuit judge sitting in the probate division or who has been assigned to hear the case on the record under procedures applicable before circuit judges, shall have the right of a trial de novo in all cases where the petition claims damages not to exceed five thousand dollars.

No stenographic or electronic record of the trial was preserved.

Judgment was entered May 19, 1987. On May 29, 1987, the plaintiff filed an "application for trial de novo" in the office of the circuit clerk, but did not at the time of filing pay the filing fee of $45.00 authorized by § 483.530(8), RSMo 1986, as required by Rule 5(1) of the rules of the Circuit Court of Camden County, reading as follows No clerk shall accept any petition or other original pleading unless the filing fee, as aforesaid, has been paid; provided however, this provision shall not apply in cases filed in forma pauperis in compliance with Supreme Court rule or in cases of a type for which the amount of filing fee is specified by statute or Supreme Court rule or order.

The fee was paid on June 4, 1987, which was more than ten days from the entry of the judgment giving rise to the request for trial de novo. Under date of September 8, 1987, the circuit court declared that the action would be dismissed on September 28, 1987, "absent writ from a higher court," because the filing fee was not paid before the time allowed by § 512.190.1 for filing the application for trial de novo had expired. Mandamus was sought in the Court of Appeals, Southern District, which denied the petition. The application was renewed in this Court and we issued our alternative writ, which we now make peremptory.

The right of trial de novo is conferred by § 512.190.1, which reads in pertinent part as follows:

1. The right of a trial de novo provided in subsection 1 of section 512.180 shall be perfected by filing an application for trial de novo with the clerk serving the associate circuit judge within ten days after the judgment is rendered.... ¹

The statute makes no reference to the payment of a filing fee. The Circuit Court is without power to impose jurisdictional requirements in addition to those set out in the statutes. Cf. Meadowbrook Country Club v. Davis, 421 S.W.2d 769 (Mo. banc 1967), holding that a circuit court could not condition the right to trial by jury in an appeal from a then-existing magistrate court on the payment of the costs of the jury by the appellant. See also, Puckett v. Swift & Co., 229 S.W.2d 713 (Mo.App.1950), pointing out that local rules must be consistent with the statutes and Supreme Court rules. The plaintiff's filing on May 29, 1987, was in full compliance with all statutory jurisdictional requirements, and the circuit court had the mandatory duty to proceed with the trial de novo, even though the filing fee was not paid until after the time for filing the application for trial de novo had expired.

The respondents contend that § 483.530(8) requires the payment of the $45.00 filing fee. While the fee is required, payment at any particular time is not made a jurisdictional prerequisite. If it were a jurisdictional prerequisite the legislature would have explicitly so provided, as was done in § 512.050, RSMo 1986, (the foundation for ...