State ex rel. South St. Joseph Town Co. v. Mosman

• Decision Date: 08 May 1905
• Parties: STATE ex rel. SOUTH ST. JOSEPH TOWN CO., Relator, v. CHESLEY A. MOSMAN, Circuit Judge, etc., Respondent
• Court: Kansas Court of Appeals

87 S.W. 75

112 Mo.App. 540

STATE ex rel. SOUTH ST. JOSEPH TOWN CO., Relator, v. CHESLEY A. MOSMAN, Circuit Judge, etc., Respondent

Court of Appeals of Missouri, Kansas City

May 8, 1905

WRIT DENIED.

Kendall B. Randolph for relator.

(1) Jurisdiction over the subject-matter is defined by all courts of last resort and law-writers to be "the power inherent in the court to hear and determine a given class of cases." The jurisdiction of the court over the subject-matter is determined by the pleadings. Dowdy v Wamble, 110 Mo. 280; Babb v. Bruere, 23 Mo.App 604; State ex rel. v. Smith, 104 Mo. 419. (2) It was the duty of the circuit court on appeal to proceed to try the case de novo, without regard to any defects in the judgment. R. S. 1899, sec. 4071; Carroll v. Hancock, 57 Mo.App. 228; Holzhour v. Meer, 59 Mo. 434. The judgment of a justice of the peace is vacated by an appeal to the circuit court. Turner v. Northcut, 9 Mo. 251; Lee v. Kaiser, 80 Mo. 431; Sublette v Railway, 96 Mo.App. 121 and 122; Earl v. Hart, 89 Mo. 263. (3) A judgment for rent, if in excess of the jurisdiction of a justice of the peace, should not be rendered, but only a judgment for restitution should be given. But if a judgment for rent is given in excess of the justice's jurisdiction it is simply void as to rent, and a writ of restitution may issue on the judgment without embodying in the writ the judgment for rent. State ex rel. v. Rainey, 99 Mo.App. 218; R. S. 1899, secs. 4130 4131, 4132, 4133. (4) The rendition of an excessive judgment does not go to the jurisdiction. January v. Stevenson, 2 Mo.App. 266; Simpson v. Watson, 15 Mo.App. 431, par. 2; Com. Co. v. Gilliland & Hamlin, 98 Mo.App. 584; Sullivan v. Lueck, 105 Mo.App. 199. There is a broad distinction between a total want of jurisdiction and an erroneous exercise of jurisdiction. Gazollo v. McCann, 63 Mo.App. l. c. 420; Henks v. Debertshauser, 1 Mo.App. 402; Shanklin v. Francis, 67 Mo.App. l. c. 465; State ex rel. v. Dearing, 180 Mo. 63, 64. (5) Where the circuit court wrongfully refuses to hear and determine a cause the remedy is by mandamus against the judge. State ex rel. v. Neville, 157 Mo. 386; Nichols v. Court, 1 Mo. 357; Costello v. Court, 28 Mo. 259; State ex rel. v. Court, 73 Mo. 560; State ex rel. v. Laughlin, 75 Mo. 358. (6) The question raised by respondent by the third paragraph of his demurrer is not raised, nor fairly deducible from the record. That point was not raised in the motion to dismiss, and in no manner entered into the consideration upon which the respondent held that he was without jurisdiction of the subject-matter, and was in no manner under consideration when the alternative writ of mandamus in this case was prepared and issued.

Woodson & Woodson for respondent.

(1) The alternate writ of mandamus does not state facts sufficient to constitute a cause of action against this respondent, because relator, even if aggrieved by the judgment and decision of the circuit court in dismissing its case, had, and at the time of the filing of the demurrer in this case still has, a perfect remedy by appeal from said judgment to this court, and for that reason it is not entitled to the extraordinary remedy of mandamus. Ayers v. Lattimer, 57 Mo.App. 80; Williams v. Judge, 27 Mo. 225; State ex rel. v. Newman, 91 Mo. 445; State ex rel. v. Smith, 104 Mo. 661; High's Extraordinary Legal Remedies (3 Ed.), section 188; Fidelity Co. v. Feed Co., 100 Mo.App. 724; State ex rel. v. Tolle, 71 Mo. 645; R. S. 1899, p. 766. (2) The dismissal of the case by the circuit court was a final determination of the right of the parties to the action, so far as that court was concerned. State ex rel. v. Klein, 140 Mo. l. c. 510; Gale v. Mickie, 47 Mo. 326; State ex rel. v. Horner, 16 Mo.App. 191. (3) The justice of the peace had no jurisdiction to render a judgment for three hundred and twelve dollars in the original action between the town company and the defendant Scott, between whom the relation of landlord and tenant existed. R. S. 1899, sec. 3836; R. S. 1899, sec. 4133; January v. Stephenson, 2 Mo.App. 266. (4) On the face of the transcript of the proceedings in said cause, it therefore affirmatively appeared that the judgment of the justice was for an amount in excess of the jurisdiction of the justice of the peace, and said judgment was therefore void. York v. Roberts, 8 Mo.App. 140; Planing Mill v. Short, 58 Mo.App. 320. (5) As the justice had no jurisdiction to render a judgment for three hundred and twelve dollars the circuit court could acquire none by appeal. Planing Mill v. Short, 58 Mo.App. 320; Reinhardt v. Kempf, 72 Mo.App. 650; Bachellor v. Best, 22 Mo. 403; Webb v. Tweedy, 30 Mo. 491; Bank v. Doak, 75 Mo.App. 336; Brownfield v. Thompson, 96 Mo.App. 342, 343; Rankin v. Farley, 29 Mo.App. 594; Com. Co. v. Gilleland, 98 Mo.App. 588, 589; Icenberg v. Ass'n, 70 Mo.App. 438; Dillard v. Railway, 58 Mo. 69; Smith v. Jacobs, 77 Mo.App. 254. (6) The third ground stated in the demurrer should be sustained, because there is no allegation in the alternative writ, nor in the statement filed with the justice of the peace before whom the suit was instituted, that the property sued for was situated in the ward or district of said justice. This is a jurisdictional fact, and its ommission is fatal. R. S. 1899, sec. 4131. While we have not been able to find a case where this particular statute has been construed, yet the books are full of cases construing similar statutes. Burns v. Lidwell, 6 Mo.App. 192; Clarkson v. Guernsey Co., 22 Mo.App. 109; Backenstoe v. Railway, 23 Mo.App. 148; Hausberger v. Railway, 43 Mo. 196; Barnett v. Railway, 68 Mo. 56; Porter v. Railway, 66 Mo.App. 623. (7) This court will take judicial notice of the fact that the city of St. Joseph has more than one hundred thousand inhabitants, as shown by the United States census for the year 1900. State ex rel. v. Court, 89 Mo. 237; State ex rel. v. Wofford, 121 Mo. 61; State ex rel. v. Macon Co., 128 Mo. 427; Dume v. Cable Co., 131 Mo. 1. (8) A justice of the peace holds an inferior court of limited jurisdiction and the record must show affirmatively that he had jurisdiction. Allen v. Scharringhausen, 8 Mo.App. 229; Gideon v. Hughes, 21 Mo.App. 528; Olin v. Zeigler, 46 Mo.App. 193; Wise v. Loring, 54 Mo.App. loc. cit. 265; Corrigan v. Morris, 43 Mo.App. 456. (9) Besides all this, there is no pretence, nor will counsel contend that the county court has ever established the districts required to be established by section 3805, supra, or that any justices of the peace have ever been elected from such districts as required by that section of the statute. This exact point was decided in the case of Ayres v. Lattimer, 57 Mo.App. 78.

OPINION

Original Proceeding in Mandamus.

JOHNSON, J.

This is an original proceeding for a writ of mandamus to compel the respondent, a judge of the circuit court of Buchanan county, to reinstate upon his docket and to hear and determine a cause dismissed by him. An alternative writ was issued by one of the judges of this court and the case is before us upon the issues presented by this writ and respondent's demurrer thereto.

The facts are as follows: On June 3, 1904, the relator brought an action against Charles Scott, as its tenant, for possession of the rented premises situated in the city of St. Joseph and to recover judgment for unpaid rent amounting to $ 262.50 which had accrued previously at the rate of $ 25 per month. The suit was begun before John Flournoy, a justice of the peace within and for Washington township in said county. Defendant, duly served with process, appeared and upon his application a change of venue was awarded and the cause sent to Joseph N. Walker, another justice in the same township. An answer was then filed by defendant, and under the claim that the facts therein alleged presented an issue involving the title to the real estate, the cause was certified by the justice to the circuit court; but, afterwards, was remanded upon the finding that such title was not in issue and that jurisdiction was vested in the justice to try the issues joined. When the cause came on for trial defendant failed to appear and judgment was entered in favor of plaintiff in the sum of $ 312, the amount of rent then delinquent, and for restitution of the premises. From this judgment defendant appealed to the circuit court, giving the statutory bond. In the circuit court he filed a motion to dismiss the cause which, among others, contained the ground that the money judgment rendered by the justice being for a greater sum than three hundred dollars was in excess of jurisdiction. Upon consideration of this motion the court entered a final judgment dismissing the case and caused his action to be set out in the record as follows: " . . . . said motion coming on to be heard, the same was taken up and considered and the same was overruled as to all of the grounds therein stated except that the judgment was void because for an amount in excess of the jurisdiction of a justice of the peace."

There is no charge of waste nor irreparable damage, nor of insolvency of defendant, but this proceeding is based upon the theory that under the landlord and tenant law, relator is entitled to a speedy trial, and as the trial court refused to take cognizance of a cause falling within its jurisdiction, the remedy of appeal is insufficient to meet the exigencies of the case.

Respondent in his demurrer attacks relator's right to relief upon the following points: First, the judgment rendered by the justice is void, being in excess of jurisdiction; and as the power of the circuit court in appealed cases is derivative an appeal from a void judgment will not confer jurisdiction. Second, the court in which the suit originated was not...