State ex rel. Kelly v. Trimble

• Decision Date: 19 February 1923
• Parties: THE STATE ex rel. E. P. KELLY et al. v. FRANCIS H. TRIMBLE et al., Judges of Kansas City Court of Appeals
• Court: Missouri Supreme Court

247 S.W. 187

297 Mo. 104

THE STATE ex rel. E. P. KELLY et al. v. FRANCIS H. TRIMBLE et al., Judges of Kansas City Court of Appeals

Supreme Court of Missouri

February 19, 1923

Rehearing Denied 297 Mo. 104 at 128.

Peremptory rule made absolute.

Frank M. Lowe for relators.

(1) The opinion of respondents is in direct conflict with the opinion of this court. Gary Realty Co. v. Kelly, 224 S.W 410. (2) The opinion in holding that the justice of the peace had the right to proceed with the case after the writ of certiorari had been issued and served upon him, is in direct conflict with decisions of this court. State ex rel. v Board of Trustees, 186 S.W. 680. (3) The opinion in holding that the order of publication issued before return day of summons was a mere irregularity is in conflict with many decisions of this court. Kunzie v. Hickman, 243 Mo. 103, 118; Williams v. Sands, 251 Mo. 132; Stanton v. Thompson, 234 Mo. 14; Priest v. Capitian, 236 Mo. 446; Lumber Co. v. McCabe, 220 Mo. 154; Lumber Co. v. Keener, 217 Mo. 530; Davis v. Montgomery, 205 Mo. 204; Hinkle v. Lovelace, 204 Mo. Mo. 219; Ramsey v. Huck, 267 Mo. 333. (4) The opinion in holding that the entry of appearance in the circuit court in an unlawful detainer suit sought to be removed by certiorari, gives the circuit court jurisdiction, regardless of failure of service of summons or publication upon the defendants in the justice court, before the filing of the application for certiorari, is in direct conflict with many decisions of this court, some of which are: Robinson v. Walker, 45 Mo. 117; Field v. Maloney, 78 Mo. 172; State ex rel. v. Nixon, 232 Mo. 496, 507; Sidwell v. Jett, 213 Mo. 601; St. Louis v. Gunning Co., 138 Mo. 355.

Cooper, Neel & Wright for respondents.

(1) The writ of certiorari cannot be made to perform the functions of an appeal on the merits, and the Supreme Court will not quash a non-conflicting court of appeals decision even if it is "erroneous or placing a wrong construction upon a statute or other law." State ex rel. Mann v. Trimble, 232 S.W. 100; State ex rel. Southern National Bank v. Ellison, 266 Mo. 423; State ex rel. Railway Co. v. Ellison, 263 Mo. 509, 514; State ex rel. Summerson v. Goodrich, 257 Mo. 40. The mere mis-application by a court of appeals of a Supreme Court ruling does not authorize the latter court to review, but there must be a refusal to follow the last controlling Supreme Court decision. State ex rel. Commonwealth Trust Co. v. Reynolds, 213 S.W. 804. The opinion does not in any respect conflict with the rulings or principles of the decisions cited by relator. They are not even analogous. And any conflict must be both very plain and direct. State ex rel. United Railways Co. v. Reynolds, 257 Mo. 19. (2) Relying upon the established rule that a writ of certiorari or prohibition operates to stay proceedings in the trial court, relators say that the opinion complained of holds that the justice of the peace had the right to proceed with the case after the writ of certiorari had been served upon him. On the contrary, the opinion holds the justice could not so proceed. (3) The opinion is not in conflict with cited decisions including those holding void an order of publication based upon a premature non est return. Relator's claim is that the opinion is wrong in holding that the order of publication and the publication itself were at most irregularities, being non-jurisdictional in this case; that jurisdiction over the subject-matter of the action was obtained before the certiorari removal by service upon defendants in actual possession, against whom unlawful detainer properly lay; that, accordingly, no further proceedings before the justice were necessary to obtain jurisdiction over the summoned defendants; and that since the non-summoned defendants afterwards appeared voluntarily in the circuit court thus conferring jurisdiction over their persons, the defective publication against them was non-jurisdictional and therefore at most a mere irregularity. Such holding was a correct construction of the pertinent sections of our unlawful-detainer statute which have never been specifically and directly construed by this court. The nearest analogous decisions of this court support the holding of the opinion. No question is made by relators with reference to the virtue of the constable's return to prove service upon the defendants who were duly summoned on November 2nd, prior to the certiorari removal. Of course it is the fact of such service, made timely, that is material, not the date or character of the return. But the latter are not and could not be attacked. It is an officer's duty, to make immediate, speedy service; and, as to defendants actually served, the officer may lawfully make his return of service before the return day of the summons. 32 Cyc. 497; 18 Ency. Pleading & Practice, 946; Miller v. Forbes, 6 Kan.App. 610. (4) There was no conflict by reason of the holding in the opinion that the cause was removed by certiorari and jurisdiction over parties made complete by the appearance of non-summoned defendants in the circuit court. (a) The statutes make the only prerequisites to be "the service of summons or making publication" and that the application shall be made "before the day of trial." The Legislature did not say that all defendants must be served to make a removal taken by part of them effective; and the object of these, like all of the provisions of the code, being to avoid delay and to provide a speedy summary remedy, the only limitation as to time is that the application be filed before trial in the justice court. Secs. 3031, 3032, R.S. 1919. Unlawful detainer can be maintained against any defendant in possession; anyone who participates in an unlawful detainer is subject to be sued. Blumenthal v. Waugh, 33 Mo. 181; Kingman v. Abington, 56 Mo. 46; Bernecker v. Miller, 40 Mo. 473; McHose v. Fire Ins. Co., 4 Mo.App. 514; Lewis v. Oesterriecher, 47 Mo.App. 82. (b) Jurisdiction over the subject-matter of action was the only prerequisite to validity of certiorari removal. Jurisdiction over the subject-matter of an action, consists of two elements, first, the inherent power or authority in the particular court to hear and determine that general class of suits, and, second, the vesting of such authority over a particular action of such general class by means of the filing of the action and the bringing of any one proper defendant into that court in some lawful manner -- whether by service of process, publication or voluntary appearance is immaterial. Fields v. Maloney, 78 Mo. 172. All the essentials of jurisdiction in the justice of the peace over the subject-matter are clearly present in this case. State ex rel. v. Nixon, 232 Mo. 496; Robinson v. Walker, 45 Mo. 120. (c) Construction of unlawful detainer statutes made by the opinion follows the decisions of this and the other appellate courts. Sholar v. Smyth, 3 Mo. 417; Hamilton v. Jeffries, 15 Mo. 617. (5) Where only part of the defendants have been served, the judgment is valid and enforcible against those who were served even though a nullity as to those not served. No judgment is treated as an entirety, but rather as enforcible severally against the defendants properly in court, regardless of any deficiency as to other defendants. Skillman v. Clardy, 256 Mo. 320; State ex rel. Ozark Co. v. Tate, 109 Mo. 268-70; Stevenson v. Black, 168 Mo. 559; Boyd v. Ellis, 107 Mo. 399; Keaton v. Jorndt, 220 Mo. 133; Williams v. Hudson, 93 Mo. 524.

WOODSON, C. J. Higbee and Elder, JJ., concur; James T. Blair and David E. Blair, JJ., dissent; Walker and Graves, JJ., concur in the result.

OPINION

In Banc.

Certiorari.

WOODSON C. J.

This is a proceeding by certiorari instituted in this court by the relators against the respondents, to quash their opinion, as Judges of the Kansas City Court of Appeals, wherein the relators were appellants, and Gary Realty Company were respondents.

This case has had a long and tortuous course, through the justice court, the circuit court, the Kansas City Court of Appeals, and this court, some of the courts two or three times, all of which, in so far as this case is concerned, are unnecessary to notice, except as will be presently mentioned.

The facts out of which this case arose were involved in an unlawful detainer suit brought by the Gary Realty Company against E. P. Kelly and others, the relators here, and said facts in so far as are here material, are as follows:

The Gary Realty Company made a lease of twenty feet of ground at the northwest corner of Twelfth and McGee Streets, in Kansas City, Missouri, known as the lobby of the Empress Theatre. The lease was made to the Empress Theatre Company, a New Jersey corporation, which operated that theatre. The lease contained the following provision:

"In case lessee becomes insolvent or goes into bankruptcy, voluntary or involuntary, or into receiver's hands, then this lease shall become void, and the remaining portion of the term shall revert to the lessor."

On July 7, 1915, upon application of two stock-holders, a receiver was appointed for the Empress Theatre Company by the Hon. Clarence A. Burney, one of the circuit judges of Jackson County.

Upon the appointment of the receiver of the property, the Gary Realty Company gave notice to the receiver of the forfeiture of the lease because of his appointment as such, and refused to receive any rents under the lease for the property thereafter. The receiver sold the property, and on October 23, 1915, filed his report of the sales, which was approved by the court on October 27, 1915.

On October 30, 1915, the Gary Realty Company demanded immediate possession of the premises of the purchasers at the receiver's sale, and contended that the...