State v. Mosman

• Decision Date: 08 May 1905
• Citation: 87 S.W. 75,112 Mo. App. 540
• Parties: STATE ex rel. SOUTH ST. JOSEPH TOWN CO. v. MOSMAN, Circuit Judge.
• Court: Missouri Court of Appeals

87 S.W. 75

112 Mo. App. 540

STATE ex rel. SOUTH ST. JOSEPH TOWN CO. v. MOSMAN, Circuit Judge.

Kansas City Court of Appeals. Missouri.

May 8, 1905.

JUSTICES OF THE PEACE—APPEALS—JURISDICTION OF APPELLATE COURT—RECITALS OF RECORD—JUSTICES IN CITIES — MANDAMUS —SCOPE OF REMEDY—DEFENSES.

1. A judge may interpose, as a defense to mandamus proceedings instituted against him, grounds for the ruling complained of which he did not assign as reasons for the ruling when made.

2. Under Rev. St. 1899, § 4071, requiring the circuit court to try a case appealed from a justice de novo, the circuit court has jurisdiction to try a cause appealed from a justice, although the judgment appealed from is in excess of the justice's jurisdiction to render.

3. A recital in a record of a case appealed from a justice that the action was commenced before F., "a duly qualified and acting justice of the peace in and for W. township, B. county, Missouri," satisfies the rule requiring the record to affirmatively show the justice's jurisdiction.

4. Rev. St. 1899, § 3805, providing that any townships which now or may hereafter include a city of 100,000 inhabitants, shall, on or before the 1st day of March, 1890, be divided into districts, in each of which one justice of the peace shall be elected, applies only to such townships containing a city of more than 100,000 inhabitants as existed on the date of its passage, or came into existence between that date and March 1, 1890.

5. Mandamus will not lie to correct the action of a circuit judge in erroneously ruling that he had no jurisdiction to entertain an appeal from a justice's judgment because the judgment appealed from was in excess of the justice's jurisdiction to render.

Mandamus proceedings by the state, on the relation of South St. Joseph Town Company, against Chesley A. Mosman, circuit judge. Peremptory writ denied.

Kendall B. Randolph, for relator. Woodson & Woodson, for respondent.

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 $300, 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 legally constituted, and therefore jurisdiction over the cause at no time was obtained. Third, the relator has a perfect remedy by appeal, and is not entitled to extraordinary relief.

It is suggested that respondent, in interposing the second defense, is overstepping the limits of judicial propriety, because the point therein made was not considered by him in his ruling upon the motion to dismiss, and his action in urging it here savors of partisanship, and indicates a purpose to defeat relator's rights, rather than a desire to aid in the accomplishment of justice in a controversy in which his sole interest is that of a judicial officer. We do not think respondent's conduct deserves animadversion in such respect. On the other hand, as we are being called upon to issue a peremptory mandate to correct a claimed abuse of power, it is respondent's duty to apprise us of any lawful reason for withholding the application of the extraordinary remedy sought. We could not act advisedly in cases of this character if a respondent, because of his office, should be held bound by rules of ethics to abstain from presenting legitimate defenses.

In dismissing the cause for lack of jurisdiction, respondent acted under the assumption that the excess in the money recovery allowed by the justice infected with invalidity the judgment in its entirety, and...