State ex rel. Morris Bldg. & Inv. Co. v. Brown

• Decision Date: 21 May 1934
• Citation: 72 S.W.2d 859,228 Mo.App. 760
• Parties: STATE OF MISSOURI EX REL. MORRIS BUILDING & INVESTMENT CO. ET AL., RELATORS, v. HON. DARIUS A. BROWN, JUDGE CIRCUIT COURT OF JACKSON COUNTY, RESPONDENT
• Court: Kansas Court of Appeals

72 S.W.2d 859

228 Mo.App. 760

STATE OF MISSOURI EX REL. MORRIS BUILDING & INVESTMENT CO. ET AL., RELATORS, v. HON. DARIUS A. BROWN, JUDGE CIRCUIT COURT OF JACKSON COUNTY, RESPONDENT

Court of Appeals of Missouri, Kansas City

May 21, 1934

Original proceeding in prohibition by the State at the relation of Morris Building & Investment Company and another against Darius A. Brown, Judge of the Circuit Court of Jackson County.

Preliminary writ quashed and proceedings dismissed.

George Halpern for relator.

Ryland Stinson, May & Thomson for respondent.

OPINION

BLAND, J.

This is an original proceeding in prohibition. To the petition for the writ respondent made a return, to which return relators filed a reply. Thereafter, respondent filed a motion for a judgment on the pleadings.

The facts, as disclosed by the pleadings, show that respondent is one of the judges of the Circuit Court of Jackson County that on August 1, 1933, and prior thereto, relator, Morris Building & Investment Company, was the owner of a certain apartment building located in Kansas City; that on that day the property was sold at public sale made in the foreclosure of a deed of trust thereon; that Alvin J. Lorie and Adele H. Lorie were the purchasers of the property at the trustee's sale; that the deed of trust contained a provision making the mortgagor, or those in possession of the property, tenants of the purchasers and requiring any one in possession to surrender the same within ten days after the trustee's sale. In due time the purchasers were given a trustee's deed and, thereafter, they made a written demand upon relator, Morris Building & Investment Company and the relator, S. E. Townsend, its agent in charge of the property, for the possession of the property, which relators refused.

On January 9, 1934, Alvin J. and Adele H. Lorie, filed a complaint of unlawful detainer against relators in a justice of the peace court. A summons, purporting to be signed by said justice, was issued returnable on January 14, 1934. Service was had upon both relators on the same day, to-wit, January 9, 1934. On said January 9, 1934, Alvin J. and Adele H. Lorie, filed a petition for certiorari in the Circuit Court of Jackson County, to remove the cause from the justice court to the circuit court. The writ of certiorari was issued out of the circuit court and directed to the justice demanding him to stop all further proceedings in the cause and to certify a complete transcript of his docket and the proceedings to the circuit court. On the same day an instrument labeled "Transcript of Judgment," purporting to be signed by the justice and having attached a copy of the writ of certiorari, the complaint in unlawful detainer, the summons from the justice court and the return of the constable of his service thereon, was filed in the circuit court. On January 9, 1934, the justice was out of the State and his court was not in session. Service the summons from the justice court was not made upon relators prior to the filing in the circuit court of plaintiffs' petition for the removal of the cause and the writ of certiorari was not served on them. Neither the summons nor the transcript from the justice court, purporting to be signed by the justice was, in fact, drawn or signed by him, but they were prepared by and his name signed thereto by his clerk.

The cause was assigned to the division of the circuit court over which respondent presides. At the trial thereof relators attacked the jurisdiction of the circuit court and also went to trial upon the merits. A jury was waived and the case was tried by the court, resulting in a judgment that relators were guilty of unlawful detention of the property and judgment was rendered against them for the restitution of the premises and for damages in double the sum of $ 88 per month, the rental value of the property.

The motions for a new trial and in arrest of judgment filed by relators were overruled and a writ of execution and restitution was issued. This writ was about to be executed when the petition for a writ of prohibition was filed in this court.

It is insisted that the circuit court acquired no jurisdiction over the cause under the writ of certiorari because (1) Service of the summons of the justice court was not made upon relators prior to the attempted removal of the cause to the circuit court by certiorari. (2) The writ of certiorari was not served upon the justice, and (3) The justice did not certify the transcript. It will be noted that there is no claim but that the summons was issued before the writ of certiorari was sued out.

Justices of the peace have exclusive original jurisdiction in forcible entry and detainer and unlawful detainer actions (Section 2449, R. S. 1929). Relators call our attention to what was said by this court in Purcell v. Merrick, 172 Mo.App. 412, 417, 418, 158 S.W. 478, in reference to actions in forcible entry and detainer, as follows:

"The law applicable to actions for forcible entry and detainer constitutes a special and preclusive code and unless its mandatory requirements be rigidly complied with in the justice court neither the circuit court, to which the cause is removed by certiorari nor the appellate court on appeal acquires jurisdiction of the subject-matter."

In view of this statement of the law it has been held that where there is no complaint filed before the justice that he acquires no jurisdiction. [McQuoid v. Lamb, 19 Mo.App. 153.] In Schwoerer v. Christophel, 64 Mo.App. 81, it was held that where an unlawful detainer proceeding is appealed to the circuit court and the defendant fails to appear, only that judgment expressly authorized by the statute, under such circumstances, could be entered.

Section 2483, Revised Statutes 1929, reads as follows:

"The proceedings under this article may be removed into the circuit court of the county by certiorari, to be issued by the clerk and served on the justice at any time after the service of summons or making publication as provided for in this article, and before the day of trial."

Section 2490, Revised Statutes 1929, reads as follows:

"When a certiorari shall be served on the justice before the day of the trial, and not otherwise, he shall stay all further proceedings, and certify to the circuit court of the county a complete transcript of his docket and all proceedings had before him, together with the original papers filed in the cause, and file the same in the office of the clerk of the circuit court within ten days after the service of the certiorari."

The Springfield Court of Appeals in Jackson v. Black, 286 S.W. 410, held that service of summons or publication might be waived in the justice court and that such is waived by the entry therein of defendant's general appearance to the suit.

In the case of Gary Realty Company v. Swinney, 306 Mo. 592, 269 S.W. 961, the proceedings in unlawful detainer had been removed to the circuit court by writ of certiorari. There were several defendants in the case, but it was removed by one defendant, alone, upon whom the summons had been served, and by another defendant upon whom service had not been had, joining in the petition for the writ. The court held that the removal to the circuit court by the defendant who had been served operated as a removal of the entire cause. Speaking of the party, who had not been served, but who joined in the petition for the writ and the other defendants not served with summons, but who appeared in the circuit court, the Supreme Court, said, l. c. 616, 617:

"Defendant, LeDoux by joining with A. LeMarquand in the application for the writ of certiorari waived service of summons, as did also the defendants Kelly and Bonfils by their voluntary appearance in the circuit court and answering to the merits."

The court disapproved of the holding of that court in the case of State ex rel. v. Trimble, 297 Mo. 104, 247 S.W. 187, relative to waiver of service of process, stating:

"In any event, its holding, that in an unlawful detainer action service of process on the defendant, or notice to him by publication, in the manner prescribed by the statute, is a requisite of jurisdiction as to subject-matter, and cannot therefore be waived by the voluntary appearance of the defendant, is so anomalous that it cannot be treated as a precedent."

So, while it is true that justice courts have exclusive original jurisdiction in unlawful detainer actions and the circuit court can obtain jurisdiction only by certiorari or appeal and unless the mandatory requirements of the statute are strictly complied with, the circuit court acquires no jurisdiction of the subject-matter, still, it is quite apparent from the two cases last cited that, in some instances, at least, service of process can be waived in either the justice or the circuit court.

The facts in the case at bar are somewhat different from those in the Jackson and Gary Realty Company cases and, while they are perhaps not authority, within themselves, to justify the holding in this case that the general appearance of the relators in the circuit court constituted a waiver of the provisions of Section 2483 requiring that service of the justice court summons be had upon the defendants in the unlawful detainer action prior to the removal of the cause to the circuit court on certiorari, yet, we see no reason why such action should not act as such a waiver. Section 2452, Revised Statutes 1929...