State v. Cave

• Decision Date: 01 December 1917
• Docket Number: No. 20367.,20367.
• Parties: STATE ex rel. NEWELL v. CAVE, Circuit Judge.
• Court: Missouri Supreme Court

199 S.W. 1014

272 Mo. 653

STATE ex rel. NEWELL v. CAVE, Circuit Judge.

No. 20367.

Supreme Court of Missouri. In Banc.

December 1, 1917.

Rehearing Denied December 22, 1917.

Original proceedings of mandamus by the State on the relation of James P. Newell against Rhodes E. Cave, Circuit Judge. Alternative writ made permanent.

This is an original proceeding instituted in this court asking for a writ of mandamus against the Honorable Rhodes E. Cave, one of the judges of the circuit court of the city of St. Louis, directing him to reinstate and proceed with the trial of the case of James P. Newell v. Frank M. Slater, an election contest as to the right to the office of public administrator of said city, lately pending in said court before said judge, and by him dismissed. An alternative writ was issued and served upon Judge Cave, to which he filed a demurrer, thereby admitting the facts stated therein. They are substantially as follows:

Newell, the relator, and Slater were adversary candidates for the office of public administrator of the city of St. Louis at the November election of 1916; the board of election commissioners of that city awarded the certificate of election to Mr. Slater. Within the time allowed by the statute the relator, Mr. Newell, served Mr. Slater with a notice of contest. This notice was served, however, not by the sheriff, but by a private individual. The contents of the notice of the contest is not here material, and for that reason is omitted from the statement of the case. The affidavit of the private individual who served Mr. Slater is found in the return. This notice of contest was filed in the office of the circuit clerk on the 7th day of December, 1916, and was returnable to the February term, 1917, of the circuit court of the city of St. Louis. On the 23d day of December, 1916, the contestee, Mr. Slater, served the relator, Mr. Newell, with a notice of counter contest, which also is immaterial here. This likewise was served not by a sheriff of the city of St. Louis, but by a private individual. The opening day of the February term of the circuit court of the city of St. Louis for 1917 was the 5th day of February, and on that day Mr. Slater appeared by his counsel and filed his notice of counter contest in court. On the 24th day of February, 1917, the relator served on his adversary an amended notice of contest. This again was served not by the sheriff of the city of St. Louis, but by a private individual. This amended notice of contest was filed by leave of court and in open court on the 24th day of February, 1917. On the 1st day of March, 1917, the contestee, Slater, appeared again in open court, and filed his motion to strike out parts of his amended notice of contest. The ground upon which this motion was rested had nothing to do with the manner in which service had been had under either the original or amended notice of contest. It set up that the original notice of contest was so defective in the matter of averment respecting the names of disqualified voters and the grounds of their disqualification as not to admit of amendment. The contestee later appeared in court and submitted his motion to strike out parts of his amended notice of contest, as will appear in the printed record, and the same was overruled by the court. On the 4th day of May, 1917, the relator filed his application for a recount of the votes cast. On the same day and for the first time the contestee, Slater, challenged the jurisdiction of the court to proceed with the matter by filing his motion to dismiss the proceedings, for the first time contending that the court was without jurisdiction, for the reason that the notice of contest had not been served by any officer of law authorized to serve process. On the 4th day of June, 1917, the court sustained this motion to dismiss, whereupon followed this application for a writ of mandamus to compel the court (Judge Cave presiding in the division where the controversy was pending), to reinstate the contest and proceed with the hearing and determination of the same in orderly course.

Mortimer B. Levy, Peter T. Barrett, and Jones, Hocker, Sullivan & Angert, all of St. Louis, for relator. Major & Revelle, Spencer & Donnell, and George B. Webster, all of St. Louis, for respondent.

WOODSON, J. (after stating the facts as above).

The correct decision of this case turns upon the proper time and manner of commencing and giving the notice of contest to the contestee as required in section 5924, R. S. 1909, which reads as follows:

"No election of any county, municipal or township officers shall be contested, unless notice of such contest be given to the opposite party within twenty days after the vote shall have been officially counted."

Counsel for respondent insists with much vigor that since the notice of contest prepared and made out by the contestant was served upon the contestee by a private individual, and not the sheriff of the city of St. Louis, the same was ab initio null and void, to the same extent as if it had never been prepared or served by any one; also that service of such notice cannot be waived, and in support of that insistence counsel rely with much confidence upon the ruling of this court in the case of Woodson v. Robinson, 192 S. W. 1001, not yet officially reported.

After a careful study of that case it must be conceded that the opinion therein contains language sufficiently broad and comprehensive to warrant the position taken by counsel in this case; but in that case it must be noticed that the contestee, from the very inception of the case, challenged the jurisdiction of the court over the cause for failure of proper service, and renewed the same at every proper step taken thereafter, so the question of waiver involved in this case was not properly before the court in that case for decision, and what was there decided as to this question was therefore mere obiter, and not binding on the court.

In the case at bar, as appears from the statement of the case, which is conceded by counsel for all parties to be correct, the contestee repeatedly entered his general appearance in the cause, and at no time prior to May 4, 1917, challenged the jurisdiction of the court for any reason. Upon that day the contestee for the first time filed his motion to dismiss the cause for the reason that the court acquired no jurisdiction over the subject-matter thereof, because the notice of contest had not been served by an officer of the law authorized to serve process, and that the same could not be waived.

Counsel for respondent seem to confuse the subject-matter of the cause with the person of the contestant. It is too plain for argument that the contestant and contestee are the parties to the cause, and the contest of the title to the office is the subject-matter thereof.

The jurisdiction of the court over the subject-matter of the cause is confessed by law, and its nonexistence cannot be waived by the parties; but the service of process has to do with the jurisdiction of the court over the persons or parties to the cause, and that service may be waived by the appearance of the parties to the merits. The authorities are uniform on those questions. Fithian v. Monks, 43 Mo. loc. cit. 515; State ex rel. v. Smith, 104 Mo. loc. cit. 422, 16 S. W. 415; State ex rel. v. Neville, 110 Mo. loc. cit. 348, 19 S. W. 491; Dowdy v. Wamble, 110 Mo. loc. cit. 284, 19 S. W. 489, and cases cited; Railway Co. v. Lowder, 138 Mo. loc. cit. 536, 39 S. W. 799, 60 Am. St. Rep. 565; 7 Ruling Case Law, p. 1029; O'Brien v. People, 216 Ill. 354, 75 N. E. 108, 108 Am. St. Rep. 219, 3 Ann. Cas. 966, and cases cited.

The question here presented for decision is not a new one in this state, nor in the jurisprudence of other states. Long prior to the rendition of the decision in the case of Woodson v. Robinson, supra, it had been the well-settled law of this state that the contestee, by entering his general appearance in the cause, pleading to or contesting the merits thereof, waived the question of jurisdiction when not properly and timely challenged.

In the case State ex rel. v. Oliver, 163 Mo. 679, 64 S. W. 128, this court said:

"It is thought that James K. Young's appearance as contestee before the clerk of the circuit court, and filing a motion to require his opponent to give security for costs and also his motion to make Oliver's notice of contest more definite and certain, were such appearances as cured a defective service if there were any. Lemon v. Board, 108 Mo. 235 . Besides that, Young appeared before the county clerk and filed a counter notice of contest."

In State ex rel. v. Spencer, 164 Mo. 48, 63 S. W. 1118, this court used this language:

"In this case, however, the contestee appeared and filed an answer and cross-charges. By so doing he waived the failure to give the notice required by section 7057. State ex rel. v. Board of Equalization, 108 Mo. loc. cit. 243 ; State ex rel. v. Springer, 134 Mo. 227 . Consent cannot confer jurisdiction over the subject-matter. (Cases.) But the court had jurisdiction over the subject-matter by law. Consent can confer jurisdiction over the person, and a party sui juris may waive even the issue of a summons and appear and answer. If he does so he is as completely in court as if he had been brought in by notice or process. Coleman v. Farrar, 112 Mo. 56 ; Fithian v. Monks, 43 Mo. 502; Thompson v. Railroad, 110 Mo. 147 ; Leonard v. Sparks, 117 Mo. 103 [22 S. W. 899, 38 Am. St. Rep. 646]. If the contestee desired to avail himself of the want of notice, he should have seasonably interposed an objection on that ground by a limited appearance to dismiss. Thompson v. Railroad, 110 Mo. 147."

And in State ex rel. v. McElhinney, 199 Mo. 67, 97 S. W. 159, the court said:

"But there is a further answer to this whole contention on the part of the relator. It is admitted that as contestee he appeared in the circuit court and filed his answer to...