Vance v. McHugh

• Decision Date: 02 February 1915
• Parties: J. W. VANCE, Respondent, v. THOMAS McHUGH, Appellant
• Court: Missouri Court of Appeals

173 S.W. 80

187 Mo.App. 708

J. W. VANCE, Respondent, v. THOMAS McHUGH, Appellant

Court of Appeals of Missouri, St. Louis

February 2, 1915

Appeal from Lincoln Circuit Court.--Hon. B. H. Dyer, Judge.

Judgment reversed and cause remanded.

R. L Sutton for appellant.

(1) It was competent for defendant to show by parol that the actual amount claimed by defendant in the justice court upon his set-off was within the jurisdiction of the justice notwithstanding the set-off on its face exceeded his jurisdiction. Best v. Best, 16 Mo. 530; Downey v. Ferry, 2 Watts, 304; Vanderberg v. Gas Company, 199 Mo. 460; Bridge Co. v. Transit Co., 205 Mo. 179; Cherry v. Cherry, 150 Mo.App 418; Buxton v. Debrecht, 95 Mo.App. 599. (2) The circuit court is a court of general inherent jurisdiction, and as such had by law original jurisdiction of the subject-matter of defendant's set-off, and the parties, by appearing and going to trial in the circuit court upon the issues made up by the pleadings on file, conferred upon the court full jurisdiction over their persons, and nothing more was necessary to give the court complete jurisdiction and power to determine and adjudicate the matter of complaint between them. Danforth v. Thompson, 34 Iowa 243; Pruett v. Stuart, 5 Ala. 112; Smith v. Mayberry, 61 Ark. 520; Pearson v. Gillett, 55 Mo.App. 317; Nicholson v. Railroad, 55 Mo.App. 598; Krass, etc., v. Shipp, 69 Mo.App. 49; Hadley v. Bernero, 103 Mo.App. 554; Robinson v. Walker, 45 Mo. 120; Sidwell v. Jett, 213 Mo. 609; State ex rel. Dunham v. Nixon, 232 Mo. 98; State ex rel. St. Louis, etc., Co. v. Nixon, 232 Mo. 496; 24 Cyc. 643. (3) A showing that the clover purchased by defendant from plaintiff, the purchase price of which was demanded in plaintiff's account sued on by him herein, was taken by defendant with the acquiescence and consent of plaintiff, in part payment of an account then held by defendant against plaintiff, would have been a complete defense to this item in plaintiff's account, and defendant was entitled to have such defense submitted to the jury, without the necessity of pleading such defense, or of filing a set-off or counterclaim for the value or purchase price of such clover. Beck v. Kinnealy, 89 Mo.App. 423; Rider v. Culp, 68 Mo.App. 531; Buxton v. Debrecht, 95 Mo.App. 599, 606; Craddock v. Godding, 10 Colo.App. 115.

W. H. Jackson and Avery, Young, Dudley & Killam for respondent.

(1) No error was committed in refusing defendant's offer to show that his attorney had stated on the trial before the justice that plaintiff was entitled to a credit on defendant's set-off for seventy-two dollars for the purpose of bringing the set-off within the jurisdiction of the justice. (a) Because defendant has no right to use items of plaintiff's account sued on to reduce his own set-off to an amount within the jurisdiction of the justice of the peace. Almeida v. Sigerson, 20 Mo. 497; Reed v. Snodgrass, 55 Mo. 180; Green v. Beebe, 39 Mo.App. 468; Wells v. Gouveia, 161 Mo.App. 565. (b) The proffered testimony neither showed an amendment nor authority to the justice to enter an amendment or credit on the defendant's set-off. Best v. Best, 16 Mo. 530; Robinet v. Nunn, 9 Mo. 246. (c) The defendant undertook to prosecute the entire claim until the court ruled it out, and it was then that he undertook to show that he had admitted that plaintiff was entitled to a credit in the justice's court. (d) The jurisdiction of the circuit court was purely derivative and the justice, having no jurisdiction of the set-off, the circuit court acquired none by appeal. Webb v. Tweedy, 30 Mo. 488; Bank v. Doak, 75 Mo.App. 336; Seeser v. Southwick, 66 Mo.App. 671; Mill Co. v. Short, 59 Mo.App. 342; Kellog v. Linger, 60 Mo.App. 578; Reinhardt v. Kempf, 72 Mo.App. 650; Saunders v. Scott, 132 Mo.App. 209; Sanders v. Selleck, 165 Mo.App. 395. (e) The amount of the claim must be determined by the record for the purpose of determining jurisdiction. R. S. 1909, sections 7446 and 7448; Malone v. Hopkins, 40 Mo.App. 331; Knoche v. Perry, 90 Mo.App. 482; Seeser v. Southwick, 66 Mo.App. 669; Hansberger v. Railroad, 43 Mo. 196; Gregory v. Railroad, 20 Mo.App. 448. (2) Plaintiff, by appealing and going to trial upon the merits in the circuit court, did not waive the want of jurisdiction of the circuit court over defendant's set-off, for, while jurisdiction of the person may be waived on appeal there can be no consent to nor waiver of jurisdiction of the subject-matter either in justice's court or in the circuit court by appeal. (a) By taking an appeal from the judgment of the justice, the party appealing does not waiver objection to jurisdiction over the subject-matter. Olero Co. v. Hoffmire, 9 Colo.App. 526; Parker v. Raphael, 64 Ill.App. 299; 24 Cyc., page 694, n. 7. (b) Jurisdiction of the subject-matter is not waived in justice's court nor in circuit court on appeal, by appearing and going to trial. Bank v. Doak, 75 Mo.App. 336; Grant v. Stubblefield, 138 Mo.App. 555; Barnes v. Plessner, 121 Mo.App. 77; Dennis v. Bailey, 104 Mo.App. 638; Meyer v. Ins. Co., 184 Mo. 481; Bente v. Rem. Type. Co., 116 Mo.App. 77; Seeser v. Southwick, 66 Mo.App. 671. (c) The question of want of jurisdiction of appellant's set-off was properly raised by objections to the introduction of any evidence on behalf of such set-off. Pattison Code Pleading, sections 866-868. (3) There was no error in the action of the court in regard to the $ 72 item for clover.

NORTONI, J. Reynolds, P. J., and Allen, J., concur.

OPINION

NORTONI, J.

--This is a suit on an account. Plaintiff recovered and defendant prosecutes the appeal.

The suit originated before a justice of the peace, and the amount of the account sued for is $ 154.27. Defendant filed a set-off containing numerous items of account against plaintiff--in all amounting to $ 294.75, and prayed judgment for this amount. The case was tried before the justice and found its way to the circuit court by appeal, for trial de novo. The parties appeared for trial in the circuit court and no formal objection appears to have been made to defendant's set-off until he commenced the introduction of evidence with a view of establishing the matters of account therein set forth. Thereupon plaintiff objected to the court's hearing evidence on the matters set forth in defendant's account of $ 294.75, for the reason the court was without jurisdiction over the subject-matter, because the amount exceeded the jurisdiction of the justice of the peace, where it originated. The court sustained this objection and denied defendant's right to be heard on the set-off, for the reason stated--that is, that the court was without jurisdiction over its subject-matter--and the principal question for consideration here relates to this ruling.

The statute vests jurisdiction in the court of a justice of the peace in suits on account, to the extent of $ 250, and it is conceded that the justice of the peace in the first instance was without jurisdiction over the subject-matter of the set-off because of its amount, $ 294.75. But it is argued, though such be true, the circuit court possesses general, inherent and original jurisdiction with respect to suits on account, in the amount involved in the set-off, and, therefore, the only question relates to the jurisdiction of that court over the person of the parties; and it is said this was waived by the appearance in going to trial without objection. It is true the circuit court possesses original jurisdiction over the subject-matter of a suit on account for $ 294.75, but the instant case did not originate in that tribunal. On the contrary, it came there by appeal from the court of the justice of the peace, which possessed no jurisdiction over the subject-matter of the set-off, and the rule of decision well established in this State is to the effect that the jurisdiction of the circuit court on appeal from a justice is to be regarded as derivative. In other words, jurisdiction over the subject-matter of the action may not be conferred by consent of the parties but is derived through the appeal from the justice, and this is true though the case is to be tried anew in the circuit court.

This court has but recently said:

" It is well settled that the jurisdiction of a justice of the peace must affirmatively appear on the face of the proceedings. [See Ruckert v. Richter, 127 Mo.App. 664, 106 S.W. 1081; Severn v. Railroad, 149 Mo.App. 631, 129 S.W. 477; Buchholz v. Insurance Co., 176 Mo.App. 464, 158 S.W. 451.] And, if a justice has no jurisdiction, the circuit court can acquire none on appeal, for the jurisdiction of the latter is purely derivative and dependent upon the jurisdiction of the justice. [See Brownfield v. Thompson, 96 Mo.App. 340, 70 S.W. 378; Johnson v. Stephens, 107 Mo.App. 629, 82 S.W. 192; Bucholz v. Insurance Co., supra.]" [Trapp v. Mersman, 183 Mo.App. 512, 167 S.W. 612.] [See Guhman v. Dunaway, 183 Mo.App. 659, 167 S.W. 598; see also to the same effect, Saunders v. Scott, 132 Mo.App. 209, 111 S.W. 874; Sanders v. Selleck, 165 Mo.App. 392, 147 S.W. 134; Buchholz v. Metropolitan Life Ins. Co., 176 Mo.App. 464, 158 S.W. 451; Johnson v. Stephens, 107 Mo.App. 629, 82 S.W. 192; Seeser v. Southwick, 66 Mo.App. 667; Bank v. Doak, 75 Mo.App. 332; Reinhardt v. Kempf, 72 Mo.App. 646, 650.]

But it is urged the better view is, that where the appellate court has original as well as appellate jurisdiction and the case is to be tried anew, as in the matter of an appeal from the justice of the peace to the circuit court, jurisdiction of the subject-matter should be regarded as vested by the law in the appellate court in such cases and the question treated as one concerning the jurisdiction over the person only, which may be conferred by consent....