State v. Porterfield

• Decision Date: 24 May 1926
• Docket Number: No. 15608.,15608.
• Citation: 283 S.W. 459
• Parties: STATE ex. rel. WHOLEY v. PORTERFIELD, Circuit Judge.
• Court: Missouri Court of Appeals

283 S.W. 459

STATE ex. rel. WHOLEY v. PORTERFIELD, Circuit Judge.

No. 15608.

Kansas City Court of Appeals. Missouri.

May 24, 1926.

Original proceeding in prohibition by the State of Missouri, at the relation of John J. Wholey, against Hon. E. E. Porterfield, Judge of the Circuit Court of Jackson County. Preliminary writ made permanent.

James I. Wagner and Oscar B. Elam, both of Kansas City, for relator.

A. P. Leacy and H. G. Pope, both of Kansas City, for respondent.

BLAND, J.

This is an original proceeding in prohibition, wherein the relator seeks to prohibit Hon. E. E. Porterfield, one of the judges of the circuit court of Jackson county, Mo., from taking further cognizance of the case of Merchants' Bank v. Wholey therein pending. A preliminary writ was issued, and the case now comes up on the question of making it permanent.

The facts show that the Merchants' Bank on October 13, 1923, instituted a suit in the justice court of Jackson county, Mo., against the relator by filing a statement therein in two counts, in which it was alleged that defendant had executed two promissory notes to the Fairyland Park Amusement Company in the sum of $250 each; one note bearing interest at the rate of 6 per cent. per annum and providing for attorney's fee of 10 per cent. should the note be placed in the hands of an attorney for collection, and the other bearing interest at the rate of 8 per cent. per annum without the clause of 10 per cent. for attorney's fee. The, statement further alleged that these notes had been transferred before maturity to plaintiff; that although they were due and demand for their payment had been made, defendant had refused to pay the same. Judgment was prayed for in the total sum of $500, together with interest and costs and 10 per cent. attorney's fee on the note providing for the same. A judgment was entered in favor of plaintiff, and in due time defendant appealed to the circuit court. The transcript of the justice reads as follows:

"Transcript of Judgment.

"The Merchants' Bank, a Corporation, Plaintiff, v. John J. Wholey, Defendant. Before M. H. Joyce, Justice of the Peace, First District, Kaw Township, Jackson County, Missouri. Note & Attys. fees $550.

"On the 13th day of October, 1923, comes plaintiff and files in the sum of $550. Summons issued and delivered to Wm. Mobley, a constable of Kaw township, Jackson county, Mo., returnable on the 29th day of October, 1923, at 11 o'clock a. m. On the 16th day of October, 1923, said constable returns the said summons served in Kaw township, by delivering a copy of the same to the within named defendant, John J. Wholey,

"October 29, 1923, cause continued to November 5, 1923.

"Continued to November 12, 1923.

"November 12 defendant files motion to dismiss for the reason plaintiff demand exceeds jurisdiction. Cause cont. to November 20, 1923, by agreement.

"November 20, 1923, plaintiff renounces the attorney fees in this cause and defendant withdraws his motion to dismiss.

"November 20, 1923, cause coming on to be heard comes plaintiff and defendant being called comes not but makes default evidence of plaintiff produced cause submitted to justice who finds for plaintiff for the sum of $500, principal and interest $16, a total of $516.

"It is therefore considered and adjudged by the justice that the plaintiff do have and recover of and from the defendant the said sum of $516 together with costs herein expended and execution issue therefor.

                                        "M. H. Joyce, 3. P."
                

After the cause reached the circuit court, defendant therein filed several motions; one to strike the petition from the files because the same was unnecessary, another to dismiss because the notes sued on had not been filed, and another to require plaintiff to file the notes. Defendant also filed therein an answer pleading to the merits. The notes were never filed in the justice court, but were filed in the circuit court. In the circuit court plaintiff was given permission to amend the statement by adding the name of the Fairyland Amusement Company, a corporation, as party plaintiff....