Tippack v. Briant

• Decision Date: 31 October 1876
• Parties: A. TIPPACK, et al., Plaintiffs in Error, v. A. C. BRIANT, Defendant in Error.
• Court: Missouri Supreme Court

63 Mo. 580

A. TIPPACK, et al., Plaintiffs in Error,

v.A. C. BRIANT, Defendant in Error.

Supreme Court of Missouri.

October Term, 1876.

Error to Cass Common Pleas Court.

Bereman & Smith, with Nation & Allen and Hines & Cline, for Plaintiffs in Error, cited in argument: Lanham vs. Boggs, 1 Mo. 476; Murphy vs. Howard, 1 Hempst., 205; Ashuelot Bank vs. Pearson, 14 Gray, 521; Scott vs. Moone, 41 Vt. 205; St. Louis vs. Fox, 15 Mo. 71; Hansberger vs. Pac. R. R. Co., 43 Mo. 196; Schell vs. Leland, 45 Mo. 289; Mail Co. vs. Flanders, 12 Wall., 130; Marsh vs. Haywood, 6 Humph. [Tenn.] 210; Freem. Judg., 120; Butler vs. Ivie, 30 Mo. 478; Long vs. Cockrell, Adm'r, 55 Mo. 93; Dieks vs. Hatch, 10 Iowa, 380; Moon vs. Ellis, 18 Mich. 77; Dodson vs. Scroggs, 47 Mo. 285; Cones vs. Ward. Ib. 289; Tuppery vs. Hertung, 46 Mo. 135; Stone vs. Corbett, 20 Mo. 350; Dilworth vs. McKelvy, 30 Mo. 149; Gilham vs. Kerone, 45 Mo. 487; State ex rel. vs. Hays, 52 Mo. 578; Dillard vs. St. L., K. C. & N. R. R. Co., 58 Mo. 69; Mora vs. Kuzac, 21 La. An. 754.

Boggess & Cravens, with Adams & Sloan, for Defendant in Error, cited Bridle vs. Grau, 42 Mo. 359; Smith vs. Winston, 10 Mo. 299; Reed vs. Wilson, 13 Mo. 28; Hansard vs. Reed, 29 Mo. 472; White vs. Van Houten, 51 Mo. 577; Hohenthal vs. Watson, 28 Mo. 360; Berghoff vs. Heckwolf, 26 Mo. 513; Norris Repl. 190; Brown vs. Parker, 5 Blackf., 291; Gibbs vs. Bartlett, 2 Watts & Serg. 29; Waterman vs. Yea, 2 Wilson, 42; Perreau vs. Bevan, 5 Barnw. & Cress., 284; Roman vs. Stratton, 2 Bibb. 199; Calloway vs. Nifong, 1 Mo. 223; Exparte Toney, 11 Mo. 661; Powell vs. Gott, 13 Mo. 458; McCollum vs. Lougan's adm'r, 29 Mo. 451; Collier vs. Wheldon, 1 Mo. 1; yates vs. Kimmel, 5 Mo. 87; Warne vs. Anderson, 7 Mo. 46; Magehan vs. Orme, 7 Mo. 4; Henslee vs. Cannefax, 49 Mo. 295; Ohio vs. Cowles, 5 Ohio, [[[[[N. S.] 87; Smith vs. St. Joseph, 45 Mo. 449; Tatum vs. Tatum, 19 Ark. 194; Parker vs. Palmer, 22 Ills. 498; Calderwood vs. Tevis, 23 Cal. 335; Webb vs. Stevens, 14 Mo. 480; Henry vs. Gibson, 55 Mo. 570.

HOUGH, Judge, delivered the opinion of the court.

This was an action instituted October 2d, 1871, in the common pleas court of Cass county, under the statute regulating the claim and delivery of personal property, in which the property sought to be recovered was valued at $4,000, and damages to the amount of $3,000, were claimed for the wrongful taking and unlawful detention thereof.

The defendant pleaded that he held possession of the property, as sheriff of Cass county, by virtue of a levy made under a writ of attachment commanding him to attach the goods and chattels of the plaintiff, Tippock, to an amount sufficient to satisfy a debt of $600 and costs, and that such levy constituted the taking and detention complained of. The defendant also denied the jurisdiction of the court, and demanded the return of the property and $600 for the taking and detention thereof. To this answer there was no reply.

At the September term, 1873, the suit was dismissed for want of prosecution. At the same term, on motion of the plaintiffs, this judgment was set aside, and the cause reinstated on the docket. Thereupon the defendant filed a motion to dismiss the suit, on the ground that the value of the property involved exceeded the jurisdiction of the court. On the 12th day of January, 1874, this motion was sustained, and the cause was dismissed. On the succeeding day the following entry was made: “Now come said parties by their attorneys, and by agreement the judgment of dismissal heretofore, on the 1st day of this term made and entered, is set aside, and by agreement judgment is rendered herein in favor of said defendant, and against said plaintiffs, A. Tippock and L. A. Hartman, for $987.92. It is, therefore, considered by the court that said defendant recover of said plaintiffs, A. Tippock and L. A. Hartman, said sum of $987.92, so found and adjudged by agreement, as aforesaid, together with his costs and charges herein sustained, and have execution thereof.” To reverse this judgment the plaintiffs have sued out the present writ of error.

The act establishing the common pleas court limited its jurisdiction to cases wherein the sum due or demanded, or damages claimed, should not exceed one thousand dollars, exclusive of interest and costs. On the 17th day of March, 1873, an act was passed, giving to the common pleas court concurrent original jurisdiction with the circuit court of Cass county in all civil actions.

It is urged by the plaintiff in error, first, that the common pleas court had no authority to make any order in the cause, except to dismiss the action; that, having no jurisdiction of the amount in controversy, any other judgment pronounced by it must be void; second, that, having no jurisdiction of the sum demanded, the consent of the parties could confer none; third, that, even though the judgment complained of could have been rendered by consent, it was for a greater sum than the defendant claimed, and is also fatally defective in form, inasmuch as it does not conform to the statute.

There may be some question whether a party whose counsel has consented of record to a judgment, can question its validity, either by appeal or writ of error. If he did not really consent, his remedy is against his counsel; and if the judgment were obtained by fraud and covin, he may be relieved against it in equity. (Bradish vs. Gee, 1 Amb. 229.) We do not deem it necessary, however, to decide this point now.

It is true, that, at the institution of this suit, the common pleas court had no jurisdiction of it, and it is also true that consent cannot confer jurisdiction as to the amount or subject matter of a controversy. In cases where the court is without such jurisdiction, the proper course is to dismiss the proceeding, though the court may first vacate such orders as may have been improperly made before the want of jurisdiction was discovered. But was there any want of jurisdiction over the amount involved in the case at bar, when the judgment by consent was rendered? After the act of March 17, 1873, was passed, making the jurisdiction of the common pleas court co-extensive with...