State ex rel. Products Co. v. Pearcy, No. 29835.

CourtUnited States State Supreme Court of Missouri
Writing for the CourtEllison
Citation29 S.W.2d 83
PartiesTHE STATE EX REL. DURAFLOR PRODUCTS COMPANY v. CLAUDE O. PEARCY, Judge of Circuit Court.
Decision Date03 June 1930
Docket NumberNo. 29835.
29 S.W.2d 83
THE STATE EX REL. DURAFLOR PRODUCTS COMPANY
v.
CLAUDE O. PEARCY, Judge of Circuit Court.
No. 29835.
Supreme Court of Missouri, Division One.
June 3, 1930.

[29 S.W.2d 84]

Certiorari to Circuit Court.

WRIT QUASHED.

Frank Coffman for relator.

(1) Respondent acted in excess of his jurisdiction, in changing the judgment of the justice, without a trial de novo. Sec. 2902, R.S. 1919; Carroll v. Hancock, 57 Mo. App. 228; Duncan v. Travis, 4 Mo. 369; Harper v. Baker, 9 Mo. 117; Beers v. Railway, 55 Mo. 292, Levine v. Marchisic, 270 S.W. (Mo.) 645; Hull v. Beard, 80 Mo. App. 200; Musgroves v. Mott, 90 Mo. 107; Boularre v. Railway, 79 Mo. 494; Sublette v. Railway, 96 Mo. App. 121; State ex rel. v. Mosman, 112 Mo. App. 547; Pullis v. Pullis, 157 Mo. 587. (2) When a cause is appealed from the justice court, it becomes the duty of the circuit court to proceed with the trial de novo, without regard to any imperfection in the judgment or other proceedings. Authorities supra. (3) And, the error, if any, in the judgment of the justice was cured by the statue, Sec. 2902, R.S. 1919, when the case was appealed. Levine v. Marchisic, 270 S.W. (Mo.) 645; Beers v. Railway, 55 Mo. 292; In re Whitman's Estate, 89 Mo. 58; Meyers v. Insurance Co., 92 Mo. App. 392; State ex rel. v. Mosman, 112 Mo. App. 540; Harper v. Baker, 9 Mo. 74. (4) Plaintiff has no right or remedy by appeal or writ of error, because: (a) There was no final judgment by the circuit court, nor does respondent's act in changing the judgment of the justice fall within any one of the subdivisions of Sec. 1469, R.S. 1919, designating when appeals may be taken. (b) Nor will writ of error lie because there has been no final judgment of the circuit court, or any court having concurrent jurisdiction with the circuit court, bringing respondent's remedy within the meaning of Sec. 1485, R.S. 1919. (c) Appeals and writs of error may be taken only from final judgments of the circuit court. The proceeding complained of is not a final judgment of the circuit court, but is the changing of the judgment of the justice of the peace. (d) And plaintiff by dismissing his appeal, which he has the power to do (and will probably have the will), can because of the acts of respondent, change a judgment against him into one in his favor, without a trial de novo, from which action the relator would have no right of appeal. (5) Certiorari is the appropriate remedy. State ex rel. v. Mosman, 231 Mo. 482; State ex rel. v. Smith, 176 Mo. 102; State ex rel. v. Weithaupt, 254 Mo. 319; State ex rel. v. Guinotte, 156 Mo. 513; State ex rel. v. Johnson, 138 Mo. App. 316; State ex rel. v. Lichta, 130 Mo. App. 291. (6) And, if respondent's record is not quashed, relator will have been deprived of its right to make the defense it made in the justice court, and will be further deprived of making any other defense it may have, even though such defense was not made in the justice court (excepting counterclaims and set-offs), because Sec. 2902, R.S. 1919, in prescribing a trial de novo, means a trial as though there had been no trial in the justice court, at all. Krause v. Spurgeon, 297 S.W. 434; State v. Smith, 264 S.W. 53; Compton v. Parsons, 76 Mo. 455; Comfort v. Lynam, 67 Mo. App. 668; Moore v. Hutchinson, 69 Mo. 429; Meyers v. Boyd, 37 Mo. App. 535; Simon v. Ryan, 101 Mo. App. 19.

Heideman & Heideman for respondent.

(1) Relator fails to show, or claim, that the instant case is of such extraordinary magnitude and importance that Rule No. 32 of this court should not be applied thereto, and for that reason the writ herein issued should be quashed. Brennan v. Walbridge, 116 Mo. 656. (2) The relator having heretofore applied to the St. Louis Court of Appeals, which is a court of concurrent and competent jurisdiction with this court in proceedings of certiorari, praying for the same relief in this cause, and against this respondent, the judgment of said Court of Appeals is res adjudicata in this case. In re Breck, 252 Mo. 322; State ex rel. Tummons v. Cox, 313 Mo. 672; State ex rel. Am. Car & F. Co. v. Daues, 282 S.W. 389; State ex rel. Douglas v. Tune, 272 Mo. 255. (3) Certiorari is not the proper remedy for relator in the instant case, as the judgment of respondent is final, from which an appeal or writ of error lies. Suess v. Motz, 285 S.W. 776; Scott v. Rees, 300 Mo. 130; Scott v. Crider, 217 Mo. App. 7; Norton v. Reed, 281 Mo. 482; Crider v. Crider, 232 S.W. 1013; Audsley v. Hall, 261 S.W. 121; State ex rel. Coonley v. Hall, 296 Mo. 212. (4) Relator was not entitled to a trial de novo in the circuit court, as the judgment of the justice of the peace in favor of relator and against Strippgen on relator's purported counterclaim was coram non judice and void ab initio, which fact appeared on the face of the justice's transcript filed in the circuit court and required no evidence or proof. Meyers v. Greenley, 237 S.W. 830; Owen v. McCleary, 273 S.W. 145; Hecker v. Bleish, 3 S.W. (2d) 1019; 2 Ency. Pleading & Practice, 23; Dillard v. Railway, 58 Mo. 69; Iba v. Railway Co., 45 Mo. 469; State v. Metzger, 26 Mo. 65.

ELLISON, J.


Certiorari to the Hon. Claude O. Pearcy, Judge of the Circuit Court of the City of St. Louis, Division 1, bringing up the record in a cause entitled Emil Strippgen v. Duraflor Products Company, a corporation, the defendant therein being the relator here.

The plaintiff Strippgen sued the relator in a justice court in the city of St. Louis on a merchandise account for $190. The relator filed answer denying the indebtedness, and alleging

29 S.W.2d 85

the merchandise was accepted and received by it to apply on an indebtedness of $4,000 which Strippgen owed it on his subscription for 40 shares of its capital stock of the par value of $100 per share. The answer concluded by alleging the plaintiff "is indebted to the corporation, defendant herein, for the unpaid balance of the subscription price, or par value of said stock, and that, therefore, he is greatly indebted to the corporation, defendant herein. Wherefore, having fully answered, this defendant prays to be hence dismissed, with its proper costs."

The justice rendered judgment as follows:

"The evidence having been duly heard the Justice doth render a judgment for Emil Strippgen, plaintiff, and against Duraflor Products Company, a corporation, defendant, for $190 on plaintiff's cause of action, and in favor of Duraflor Products Company, a corporation, defendant, and against Emil Strippgen, plaintiff, for $190 and costs on defendant's counterclaim. Plaintiff to pay costs."

The plaintiff filed his affidavit and bond in appeal "from the judgment rendered against him on defendant's counterclaim," as the justice's record recites. The affidavit in appeal states the appellant believes he has been injured by "the judgment of the justice rendered against the plaintiff."

In the circuit court the plaintiff Strippgen filed a motion "to vacate, declare null and void, and for naught hold, the judgment rendered in said cause against the plaintiff herein and in favor of the defendant herein" by the justice, for the reasons, among others, that the defendant's answer did not contain a prayer for affirmative relief, and was not a counterclaim, but amounted simply to a plea of confession and avoidance, in consequence of which the justice had no jurisdiction to render said judgment in favor of the defendant and against the plaintiff. Without any trial on the merits or hearing de novo the respondent circuit judge sustained this motion.

The relator thereupon moved the circuit court to set aside its order sustaining the plaintiff's motion, aforesaid, assigning fifteen grounds or reasons therefor, the central thought of all of which was that in the consideration of appeals from a justice of the peace court a circuit court does not sit as a court of review and cannot modify, amend or strike out the judgment of the justice; but under Section 2902, Revised Statutes 1919, must hear the cause anew, the judgment of the justice court being automatically vacated by the appeal. On motion of the plaintiff the respondent circuit judge struck the relator's motion from the files. The rulings on the three motions above mentioned were all made during the February term, 1929, of said circuit court.

This ended the case so far as the record brought up from the circuit court shows. There never was a hearing on the merits or a direct request from the relator to the circuit court that it proceed to try the cause anew. In the petition for our writ it is alleged that after the circuit court's adverse rulings on the three motions aforesaid the relator made application to the St. Louis Court of Appeals for a writ of certiorari, but that court denied the application. The petition expressly assigns the foregoing as a reason for seeking the writ from this court instead of the St. Louis Court of Appeals.

I. The answer filed by the relator in the justice court was undoubtedly good as a plea of payment or express denial of the indebtedness. But it was not a proper plea of set-off. There was no prayer for judgment on the relator's cross-demand Pleading: (though it has been said that is not fatal; Wagner v. Judgment. Dette, 2 Mo. App. 254, 260), and the amount thereof exceeded the justice's monetary jurisdiction. [Secs. 2768, 2953, R.S. 1919; Guhman v. Heckel (Mo. App.), 249 S.W. 111, 112.]

The judgment of the justice for $190 in favor of the plaintiff on his account, and for a like amount and costs in favor of the relator on its "counterclaim," was therefore erroneous. Indeed, it would have been so even if the answer had correctly pleaded a counterclaim, for the proper course in such circumstances would have been to enter a single judgment for the party prevailing on the whole case. [Secs. 1298, 2771, R.S. 1919.]

But it does not follow that the circuit court had the right to vacate the judgment for errors committed by the justice. Section 2902, Revised...

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6 practice notes
  • Hutchinson, In re, No. 8880
    • United States
    • Court of Appeal of Missouri (US)
    • 21 mei 1970
    ...therefor after termination of the proceeding in the circuit court. State ex rel. Duraflor Products Co. v. Pearcy, 325 Mo. 335, 344, 29 S.W.2d 83, 87(15). However, we hasten to add the caveat that nothing herein should be misconstrued as suggesting the advisability of seeking such review or ......
  • State ex rel. Taylor v. Blair, No. 40690.
    • United States
    • Missouri Supreme Court
    • 12 april 1948
    ...of right, and the issuance thereof rests in a sound judicial discretion (State ex rel. Duraflor Products Co. v. Pearcy, 325 Mo. 335, 344, 29 S.W. 2d 83, 87), yet the rule in this jurisdiction is that where the writ is applied for by the Attorney General, "it goes as a matter of course ......
  • Rehm v. Fishman, No. 31840
    • United States
    • Court of Appeal of Missouri (US)
    • 21 september 1965
    ...of St. Louis ex rel. and to Use of Sears v. Clark, Mo.App., 35 S.W.2d 986; State ex rel. Duraflor Products Co. v. Pearcy, 325 Mo. 335, 29 S.W.2d 83. Thus while there should be separate findings upon plaintiff's cause of action and upon defendant's counterclaim, nevertheless one final judgme......
  • Lewis v. Hinshaw's Estate, No. KCD
    • United States
    • Missouri Court of Appeals
    • 31 december 1979
    ...on the counterclaim. There was a single judgment in favor of the claimants. State ex rel. Duraflor Products Co. v. Pearcy, 325 Mo. 335, 29 S.W.2d 83, 86 (1930); Riddle v. Dean Machinery, 564 S.W.2d 238, 259 (Mo.App.1978); Rehm v. Fishman, 395 S.W.2d 251, 255 Having established that point, w......
  • Request a trial to view additional results
6 cases
  • Hutchinson, In re, No. 8880
    • United States
    • Court of Appeal of Missouri (US)
    • 21 mei 1970
    ...therefor after termination of the proceeding in the circuit court. State ex rel. Duraflor Products Co. v. Pearcy, 325 Mo. 335, 344, 29 S.W.2d 83, 87(15). However, we hasten to add the caveat that nothing herein should be misconstrued as suggesting the advisability of seeking such review or ......
  • State ex rel. Taylor v. Blair, No. 40690.
    • United States
    • Missouri Supreme Court
    • 12 april 1948
    ...of right, and the issuance thereof rests in a sound judicial discretion (State ex rel. Duraflor Products Co. v. Pearcy, 325 Mo. 335, 344, 29 S.W. 2d 83, 87), yet the rule in this jurisdiction is that where the writ is applied for by the Attorney General, "it goes as a matter of course and o......
  • Rehm v. Fishman, No. 31840
    • United States
    • Court of Appeal of Missouri (US)
    • 21 september 1965
    ...of St. Louis ex rel. and to Use of Sears v. Clark, Mo.App., 35 S.W.2d 986; State ex rel. Duraflor Products Co. v. Pearcy, 325 Mo. 335, 29 S.W.2d 83. Thus while there should be separate findings upon plaintiff's cause of action and upon defendant's counterclaim, nevertheless one final judgme......
  • Lewis v. Hinshaw's Estate, No. KCD
    • United States
    • Missouri Court of Appeals
    • 31 december 1979
    ...on the counterclaim. There was a single judgment in favor of the claimants. State ex rel. Duraflor Products Co. v. Pearcy, 325 Mo. 335, 29 S.W.2d 83, 86 (1930); Riddle v. Dean Machinery, 564 S.W.2d 238, 259 (Mo.App.1978); Rehm v. Fishman, 395 S.W.2d 251, 255 Having established that point, w......
  • Request a trial to view additional results

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