State ex rel. Shaw State Bank, a Corp. v. Pfeffle

• Decision Date: 21 February 1927
• Citation: 293 S.W. 512,220 Mo.App. 676
• Parties: STATE OF MISSOURI EX REL. SHAW STATE BANK, A CORPORATION, RESPONDENT, v. HENRY PFEFFLE, JUSTICE OF THE PEACE WITHIN AND FOR THE SECOND DISTRICT OF THE CITY OF ST. LOUIS, MISSOURI, APPELLANT.
• Court: Missouri Court of Appeals

293 S.W. 512

220 Mo.App. 676

STATE OF MISSOURI EX REL. SHAW STATE BANK, A CORPORATION, RESPONDENT, v. HENRY PFEFFLE, JUSTICE OF THE PEACE WITHIN AND FOR THE SECOND DISTRICT OF THE CITY OF ST. LOUIS, MISSOURI, APPELLANT.

Court of Appeals of Missouri, St. Louis

February 21, 1927

Appeal from the Circuit Court of the City of St. Louis.--Hon. Claude O. Pearcy, Judge.

AFFIRMED.

Judgment affirmed.

Jacob F. Pfeffle, Frank Lee, and Gatewood & Lee for appellant.

(1) Certiorari will not lie to the final judgment of a justice of the peace, for the reason that the Legislature did not give the circuit court jurisdiction of suits instituted in the justice court, except by appeal. Its jurisdiction is derivative. Sec. 2890, R. S. 1919; Boren v. Welte, 4 Mo. 250; State ex rel. Perryman, 8 Mo. 208; State ex rel Shelton, 154 Mo. 691; Moore v. Bailey, 8 Mo.App 156; Cooksley v. Railway Co., 17 Mo. App., 138; State ex rel. Williams, 70 Mo.App. 238; Fry v Armstrong, 109 Mo.App. 482; Neville v. May, 232 S.W. 209. (2) Abuses of all kinds, errors prejudicial, errors, real or fancied, go through a straightening-out process on appeal, and cannot be subjected to a strait-jacket method by certiorari. State ex rel. Wilson v. Rainey, 74 Mo. 234; Iba v. Railway Co., 45 Mo. 469; State ex rel. Kelley v. Trimble, 247 S.W. 191. (3) The right of appeal fixed by statute presupposes jurisdiction in the justice to enter judgment. If the justice is without jurisdiction the circuit court is without jurisdiction. All appeals are tried de novo. If the question concerns fraud in law, fraud in fact, error of judgment, and the like, an adequate remedy is provided by appeal. Cases cited supra. (4) The court denied the judgment creditor the right of the equal protection of the law, and deprived him of his property without due process of law, in disregard and violation of the Thirteenth Section of the Bill of Rights, Article II of the Constitution of the State of Missouri, and in disregard and violation of Article IV, Section 2, paragraph 1, of the Constitution of the United States, as supplemented by the First Section of the Fourteenth Amendment to the Constitution of the United States. State v. Julow, 149 Mo. 163; State ex rel. v. Wood, 155 Mo. 451.

Marvin E. Boisseau for respondent.

(1) Certiorari is the appropriate remedy when an inferior court has acted in excess of its jurisdiction. 5 Ruling Case Law, pp. 249, 250, 251, 253, 255, 256; 1 Bailey on Certiorari, pp. 635, 711, 730; Spelling on Extraordinary Legal Remedies, pp. 1631, 1635, 1647, 1655; State ex rel. v. Landon, Circuit Judge, 265 S.W. 529; State ex rel. v. Shelton, 154 Mo. 670; State ex rel. v. Williams, 275 S.W. 534. (2) Justice courts are inferior courts, and all facts essential to their jurisdiction must appear on the face of their proceedings. Powell v. Railway Co., 178 S.W. 212; Severn v. Railway Co., 149 Mo.App. 631. (3) The return of the justice fails to show the necessary jurisdictional facts. (a) The absence of an execution and a return made by the Constable thereon is fatal to the justice's jurisdiction. R. S. 1919, secs. 1747, 1847; Nowell v. Porter, 62 Mo. 309; Fletcher v. Wear, 81 Mo. 524; Gates v. Tusten, 89 Mo. 1; Howell v. Sherwood, 213 Mo. 565; Howell v. Sherwood, 242 Mo. 531; Epstein v. Saborgne, 6 Mo.App. 352; Grocer Co. v. Carson, 67 Mo.App. 179; Decker v. Railway Co., 92 Mo.App. 50; Kansas & Texas Co. v. Adams, 99 Mo.App. 474; Haffner v. Rice, 129 Mo.App. 667. (b) The answer filed by relator as garnishee complied with all legal requirements, and the justice had no jurisdiction to proceed further. State v. Hicks, 178 Mo. 433; State v. Zehnder, 182 Mo.App. 161; State v. Brown, 262 S.W. 710; 36 Cyc. 449; Moss v. Booth, 34 Mo. 316.

BENNICK, C. Daues, P. J., and Becker and Nipper, JJ., concur.

OPINION

BENNICK, C.--

This is an appeal from the judgment of the circuit court, quashing, on certiorari, a judgment rendered by appellant, a Justice of the Peace within and for the Second District, city of St. Louis, Missouri, against Shaw State Bank, relator herein, in the amount of $ 500.

In the petition for the writ of certiorari, filed July 24, 1924, the following allegations appear:

"That on the 15th day of November, 1918, the respondent (appellant herein) in a suit pending before him in which R. W. Dick was plaintiff and R. V. Moran was defendant, based upon a promissory note executed by the defendant for the principal sum of four hundred and ninety-two dollars ($ 492), rendered judgment in favor of the plaintiff and against the defendant for the said principal sum of the note, together with interest amounting to one hundred seventy-six dollars and thirty cents ($ 176.30), making a total judgment of six hundred sixty-eight dollars and thirty cents ($ 668.30), rendered in favor of said plaintiff and against said defendant.

"That on the 20th day of March, 1923, as a result of proceedings for reviving the said judgment, respondent entered a judgment reviving the judgment theretofore entered by him for the sum of six hundred sixty-eight dollars and thirty cents ($ 668.30) and costs in favor of the aforenamed plaintiff and against the said defendant.

"That on the 14th day of June, 1924, at the request of the plaintiff in the above-entitled cause a summons of garnishment was served upon the relator . . ., reciting that all the goods, chattels, moneys or evidences of debt which the relator then had belonging to the said R. V. Moran were attached, and summoning the relator as garnishee, said summons of garnishment being returnable before the respondent on the 24th day of June, 1924.

"That on the 18th day of June, 1924, the relator filed its answer to the interrogatories propounded by it before the respondent, . . ., and in said answer denied that it had in its possession or under its control any property, money, goods or effects belonging to the defendant R. V. Moran, and further denied that it owed the said defendant any money at the time of the service of the garnishment, or at the time of making said answer; that said answer was duly signed by Marcus Turney, vice-president of relator, and verified before a notary public, and was duly filed with the respondent on the 18th day of June, 1924.

"Relator further states that the said answer was on file before respondent at the return day of the summons of garnishment, to-wit, on the 24th day of June, 1924, and that the said answer was not denied or excepted to at any time by the plaintiff in said suit or by any one else; that under the law relator became thereupon discharged, and that the respondent had no further jurisdiction to make any order upon or enter any judgment against relator; that notwithstanding this the respondent made a memorandum upon the file in said cause marking the same continued until July 1, 1924; that upon the 1st day of July, 1924, the respondent made a further notation upon the file in said case to the effect that the same was continued until July 3, 1924; that on the 3rd day of July, 1924, the respondent, without any notice to the relator, without the production of any evidence, and without any hearing whatsoever, assumed to enter a judgment by default against the relator for the sum of five hundred dollars ($ 500.) . . .

"Relator further states that the respondent was wholly without jurisdiction to render the said judgment against the relator, for the reason that respondent at no time acquired any jurisdiction over any funds in the hands of the relator belonging to R. V. Moran, and at no time were there any funds of the said R. V. Moran attached in the hands of the relator; that the said act on the part of respondent in rendering judgment against relator was in excess of respondent's jurisdiction, for the further reason that the relator was not in default on the return day of said summons of garnishment, but that complete and sufficient answers to the interrogatories propounded to it by law were on file with respondent at said time which answer was not denied, and that the judgment rendered by relator is void.

"Relator further states that it did not know and was not informed of the acts on the part of said respondent until after the time for taking an appeal had expired; that a writ of error will not issue to review the record of the respondent, and that a writ of certiorari issued out of this Honorable Court is the only adequate remedy now open to relator."

In due course the circuit court issued its writ of certiorari, to which a motion to quash was filed by the justice but overruled by the court. Thereafter the justice filed the following return:

"Respondent for return to the writ issued in the above entitled cause, denies each and every allegation and statement of fact in the petition of relator.

"Respondent, pursuant to the command of the within writ to me directed, herewith sends the complaint in the matter referred to in the petition of relator, together with all proceedings had or taken relating to said matter as fully and completely as they remain of record before me, particularly described and referred to as follows, to-wit:

"No. 1. Petition of R. W. Dick, plaintiff, v. R. V. Moran, defendant.

"No. 2. Affidavit of Vourdon Fricke.

"No. 3. Summons for defendant in the case of Dick v. Moran, with return of Constable thereon.

"No. 4. Letter of attorneys to plaintiff dated October 28, 1918.

"No. 5. Exemption claim of defendant Moran.

"No. 6. Affidavit of plaintiff to revive judgment.

"No. 7. Letter of attorneys enclosing affidavit to revive judgment, dated March 6, 1923.

"No. 8. Letter of attorneys dated April 16, 1923, asking for execution on revived judgment.

"No. 9. Citation to revive judgment, with Constable's return thereon.

"No 10. Summons of garnishee to ...