Summons v. Beaubien

• Decision Date: 31 October 1865
• Citation: 36 Mo. 307
• Parties: WILLIAM O. SUMMONS, Defendant in Error. v. JOSEPH BEAUBIEN AND WILLIAM AUSTIN, Plaintiffs in Error.
• Court: Missouri Supreme Court

36 Mo. 307

WILLIAM O. SUMMONS, Defendant in Error.

v.JOSEPH BEAUBIEN AND WILLIAM AUSTIN, Plaintiffs in Error.

Supreme Court of Missouri.

October Term, 1865.

Error to Hannibal Court of Common Pleas.

Ewing & Harrison, for plaintiffs in error.

I. The recorder of the city of Hannibal had jurisdiction of the subject matter of this suit, by virtue of an act of February 14, 1851. (Sec. 5, Art. 8.)

II. The jurisdiction being specially conferred on this officer, his proceeding in the case must be in strict accordance with the direction as to the mode of proceeding. The objection that the petition does not state facts sufficient to constitute a cause of action, is not waived by omission to take it by demurrer or answer. Defendant can avail himself of the objection by motion in arrest of judgment. (Andrews v. Lynch, 27 Mo. 167.)

III. The defendant Austin could only be made a party by an order of the court to have him brought in by an amendment of the petition or supplemental petition. (2 R. C. p. 1253, § 4.)

L. M. Shreve, J. C. Richmond, for defendant in error.

HOLMES, Judge, delivered the opinion of the court.

This was an appeal from the recorder of the city of Hannibal to the Hannibal Court of Common Pleas, from which it comes here by writ of error. By an act amendatory of the acts incorporating the city (Art. VIII., §§ 1-7, Acts of 1851, p. 335), the city recorder is invested with the powers and jurisdiction of a justice of the peace, and with special jurisdiction in certain other cases, among which are “actions for the recovery of personal property, alleged to be unlawfully detained,” not exceeding one hundred dollars in value; and “actions in such cases are to be conducted after the rules governing such actions in the Circuit Court.” The marshal is to execute the process in the same manner as the sheriff does in similar actions in the Circuit Court, and appeals are to be allowed in the same manner as in cases before a justice of the peace; and the recorder is to “be governed and decide by the laws of the State.” The plaintiff filed a petition, in writing, for the recovery of a horse, against Joseph Beaubien, and, on the day of trial, on motion and affidavit of plaintiff, William Austin was made a party defendant by a simple order of court, and the trial proceeded without any amendment of the petition and without any written answer by either party, and there was a verdict and judgment for the plaintiff, from which the defendants took an appeal. There was another trial in the Hannibal Court of Common Pleas. without any change in the pleadings, and the...