Vance v. McHugh

• Decision Date: 02 February 1915
• Docket Number: No. 13850.,13850.
• Parties: VANCE v. McHUGH.
• Court: Missouri Court of Appeals

173 S.W. 80

VANCE v. McHUGH.

No. 13850.

St. Louis Court of Appeals. Missouri.

February 2, 1915.

Rehearing Denied February 16, 1915.

Appeal from Circuit Court, Lincoln County; B. H. Dyer, Judge.

Action by J. W. Vance against Thomas McHugh, brought before a justice of the peace, and tried de novo in the circuit court. From a judgment for plaintiff, defendant appeals. Reversed and remanded.

R. L. Sutton, of Troy, for appellant. W. H. Jackson, of Winfield, and Creech, Penn & Palmer and Avery, Young, Dudley & Killam, all of Troy, for respondent.

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; Bucholz 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."

See Trapp v. Mersman, 167 S. W. 612; Guhman v. Dunaway, 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; Bucholz 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. The proposition appears to be sound in principle and, were the question an open one, we...