State ex rel. May Dept. Stores Co. v. Weinstein

• Decision Date: 19 October 1965
• Docket Number: No. 32020,32020
• Citation: 395 S.W.2d 525
• Parties: STATE of Missouri at the relation of MAY DEPARTMENT STORES COMPANY, a Corporation, Relators, v. Hon. Noah WEINSTEIN, Successor to Hon. Drew W. Luten, Jr., Judge of the Circuit Court of the County of St. Louis, Missouri, etc., Respondents.
• Court: Missouri Court of Appeals

Page 525

395 S.W.2d 525

STATE of Missouri at the relation of MAY DEPARTMENT STORES

COMPANY, a Corporation, Relators, v. Hon. Noah WEINSTEIN, Successor to Hon. Drew W. Luten, Jr.,

Judge of the Circuit Court of the County of St.

Louis, Missouri, etc., Respondents.

No. 32020.

St. Louis Court of Appeals, Missouri.

Oct. 19, 1965.

Hocker, Goodwin & MacGreevy, Melvin L. Hertzman, Maurice Frank, St. Louis, for relators.

Joseph A. Fenlon, Clayton, for respondents.

BRADY, Commissioner.

This is an original proceeding in prohibition whereby the relator, hereinafter referred to as the plaintiff, seeks to make absolute our preliminary rule prohibiting the judges of the circuit court of St. Louis County from proceeding to assign a certain case for trial in that court.

When a petition for a writ of prohibition is filed, the opposing party may direct a motion to that petition or may make a return to the preliminary order. If a return is made, the plaintiff may reply thereto. Sec. 530.050, RSMo 1959, V.A.M.S. In the instant case the pleadings are made up of the petition for the writ, the return, and plaintiff's reply. Since the reply filed did not deny the material allegations of new matter contained in the return, they are to be taken as true for the purposes of this proceeding. State ex rel. McCubbin v. McMillian, Mo.App., 349 S.W.2d 453.

The pleadings show that the plaintiff brought an action in the magistrate court of St. Louis County against Robert M. Hoffmeier and his wife seeking recovery of an account allegedly due in the amount of $179.15. Within twenty days of the return date of the summons the defendants filed an answer and counterclaim. In the latter they prayed for actual damages in the amount of $10,000 and for punitive damages in the amount of $500,000. There was no written verification or affidavit attached to the answer or counterclaim. However, the defendants' attorney appeared before the magistrate and made oral oath that the matters contained in the counterclaim were true to the best of his knowledge, information and belief. It is conceded that the magistrate court had jurisdiction of the original action and that the amount of the counterclaim exceeds that court's jurisdiction. The magistrate certified the cause to the circuit court. Later the circuit court entered a default and inquiry against plaintiff on the defendants' counterclaim. The plaintiff entered its appearance in the circuit court proceeding for the purpose of setting aside the default and being successful, was granted ten days in which to file responsive pleading. Within that time it filed its motion to remand this cause to the magistrate court. The Hon. Drew Luten, circuit judge then presiding in the assignment division of the circuit court of St. Louis County, entered an order overruling the motion to remand and the May Company then petitioned for our writ seeking to prohibit Judge Luten's successor or successors in the assignment division of that court from proceeding to assign this case for trial.

The function of the prerogative writ of prohibition is to restrict the person or body to which it is directed from acting or proceeding in some matter in which he or it has no jurisdiction. State ex rel. Miller v. Jones, Mo.App., 349 S.W.2d 534. Art. 5, Sec. 14, Constitution of Missouri, V.A.M.S., provides for appellate jurisdiction in the circuit court 'as provided by law.' Sec. 478.070, RSMo 1959, V.A.M.S., expressly provides for the circuit court to have 'Appellate jurisdiction from the judgment and orders of * * * magistrates * * *.' Accordingly, the jurisdiction of the circuit court in this matter is derivative. Smith v. Cowen, Mo.App., 350 S.W.2d 96, l. c. 98. The ultimate issue is whether this cause was properly certified to the circuit court.

Regardless of the situation prior to 1955 (see State ex rel. St. Louis Boiler & Equipment Co. v. Gabbert, Mo.App., 241 S.W.2d 79), Sec. 517.240, subd. 2, RSMo 1959, V.A.M.S., now provides that 'If, not later than twenty days after the return date of the summons, any defendant pleads any counterclaim or setoff which exceeds the jurisdiction * * * of the magistrate court wherein the case is pending, and if the defendant, or some credible person in his behalf, by his oath verifies the truth of the allegations of the counterclaim * * * then the magistrate shall make an entry of such facts in his record of the case, and forthwith certify the cause and transmit all papers and process therein to the clerk of the circuit court of the county wherein the magistrate court is located. * * *' (Emphasis supplied.) Simply put, the plaintiff contends that the oral oath taken by the defendants' counsel does not constitute compliance with the above emphasized portion of Sec. 517.240, subd. 2, supra. We cannot agree.

The rules of statutory construction lead to the opposite result. In construing statutes we are to seek the intention of the legislators and are to ascertain that intention from the very words used in the statute if that is possible. In so doing we are to give the words used their plain and rational meaning. We are not to supply, insert, or read words into a statute unless there is an omission plainly indicated and...