State v. Bates

• Decision Date: 30 June 1926
• Docket Number: No. 3931.,3931.
• Parties: STATE ex rel. RAKOWSKY v. BATES, Circuit Judge.
• Court: Missouri Court of Appeals

286 S.W. 420

STATE ex rel. RAKOWSKY v. BATES, Circuit Judge.

No. 3931.

Springfield Court of Appeals. Missouri.

June 30, 1926.

Rehearing Denied July 13, 1926.

Proceeding by the State of Missouri, on the relation of Victor Rakowsky, for writ of prohibition to be directed against S. W. Bates, as Judge of Division 1 of Jasper County Circuit Court. Writ made permanent.

McReynolds, McReynolds & Flanigan, of Carthage, and Paul E. Bradley, of Joplin, for relator.

Haywood Scott, of Joplin, for respondent.

COX, P. J.

The material facts, as gathered from the pleadings, and which are not controverted, are substantially as follows:

On May 15, 1925, Fred S. Campbell, Fred L. Rosemond, Chas. L. Spring, and Haywood Scott, as plaintiffs, filed a petition in the office of the clerk of the circuit court at Joplin in Jasper county, against this relator and two other parties. The caption of this petition contained these words: "In the Circuit Court of Jasper County, Missouri, June Term, 1925." The clerk of the circuit court then issued a summons, directed to the sheriff of Jasper county, commanding him to summons the defendants to "appear before the circuit court of Jasper county, to be holden within and for the county of Jasper, at the courthouse in the city of Joplin, on the first day of the next term thereof, to be begun and held on the first Monday in June next, A. D. 1925." Another defendant was the first one served, and the relator was served, as shown by the return of the sheriff, by leaving a certified copy of the summons at his usual place of abode with a member of his family over the age of 15 years. There was no regular term of the circuit court held at Joplin on the first Monday in June, but a regular term did convene at Carthage on that day. The law provides when regular terms shall be held, and relator also actually knew that a regular term of the circuit court convened at Carthage on the first Monday in June, but did not convene at Joplin on that date.

When the court convened at Carthage, the relator filed in the court there a motion to quash the sheriff's return of the summons on the ground that the sheriff had maile a false return. The motion recited that appellants appeared specially for the purpose specified in the motion only. The court overruled that motion, and very properly so. The return of the sheriff was regular on its face, and if false in fact it was still binding on the parties. The remedy in that case would be a suit upon the bond of the sheriff. Ellis v. Nuckols, 237 Mo. 290, 294, 140 S. W. 867; Mattocks v. Van Asmus, 180 Mo. App. 404, 168 S. W. 233.

After relator's motion to quash the return of the service had been overruled, he then, appearing specially, filed a plea to the jurisdiction of the court upon the ground of a false return of the sheriff. The plaintiffs filed a motion for judgment by default. The respondent entered an interlocutory judgment by default, and the petition for writ of prohibition in this court alleges that he will, unless prohibited, enter final judgment. This allegation is not denied, and is taken by us as true.

The act of the Legislature which provided for holding terms of the circuit court at both Carthage and Joplin, in Jasper county (Laws 1877, 210, § 46), provides that, when a case is commenced or made returnable at one of said places, it shall not be transferred to the other place, except by the written consent of the parties to that case. We assume that the provision as thus enacted is still the law. The petition alleged that relator had not consented in writing that the case be transferred from Joplin to Carthage. This is conceded, unless the motions filed in the court at Carthage are to be construed as written consent for that purpose.

The petition in this case was filed in the office of the circuit clerk at Joplin, and if, from that fact alone, it is to be held that the suit was commenced at Joplin, then jurisdiction at that place attached when the petition was filed there, and the case was triable there, unless it should be removed to Carthage by the written consent of the parties, or the defendant should voluntarily appear in that court in such a way as to give the court at Carthage jurisdiction over his person. It has been uniformly held in this state that a suit is commenced when the petition is filed and process directed to be issued by the party filing the petition. It is also held that, if a petition be filed and no directions given the clerk of the court about issuing process, it is his duty to issue process immediately. Section 1182, Rev. Stat. 1919, provides that:

"The filing of a petition in a court of record, or a statement or account before a court not of record, and suing out of process therein, shall _be taken and deemed the commencement of a suit."

If a petition be filed in a court of record, and nothing said to the clerk about issuing the process, the mere filing of the petition amounts to an order to the clerk to issue process, and is in fact, a suing out of process within the terms of the statute. McGrath v. St. Louis, K. C. & C. Ry. Co., 128 Mo. 1, 9, 30 S. W. 329; Norton v. Reed, 281 Mo. 482 loc. cit. 493, 221 S....