Wade v. Markham

• Decision Date: 24 May 1937
• Docket Number: No. 18951.,18951.
• Citation: 106 S.W.2d 939
• Parties: WADE v. MARKHAM et al.
• Court: Missouri Court of Appeals

106 S.W.2d 939

WADE v. MARKHAM et al.

No. 18951.

Kansas City Court of Appeals. Missouri.

May 24, 1937.

Rehearing Denied June 14, 1937.

Appeal from Circuit Court, Jackson County; Darius Brown, Judge.

"Not to be published in State Reports."

Action by Rolla B. Wade against Mell R. Markham and another and John Parko and another wherein the cause was dismissed as to Mell R. Markham and another and defendants John Parko and another filed a counterclaim. Judgment for defendants on their counterclaim, and the plaintiff appeals.

Dismissed.

Leo T. Schwartz and Julius C. Shapiro, both of Kansas City, for appellant.

Louis Krings and Harry C. Clark, both of Kansas City, for respondents.

CAMPBELL, Commissioner.

This suit was brought against Mell R. Markham, Bryan Hessing, John Parko, and H. J. McGowan. Neither Markham nor Hessing was served with process and the cause was dismissed as to them.

The substance of the petition was that from time to time, between May, 1935, and April, 1936, plaintiff paid to the defendant interest for the use of money loaned to him by them at the rate of 240 per cent. per annum, and that the total of the sums thus paid was $20.80 in excess of the legal rate of interest. Judgment was prayed for the said sum of $20.80, plus attorneys' fees in the sum of $150.

The verified answer of the defendants Parko and McGowan was a general denial, a denial that they, Markham and Hessing, were partners, and a counterclaim in which they sought judgment against plaintiff in the sum of $22. The cause was tried to the court and a jury. The court at the close of the evidence directed the jury to return a verdict for the defendants and against the plaintiff on the plaintiff's cause of action and for the defendants and against plaintiff upon the defendants' counterclaim. The jury returned verdict as directed. Thereupon the court entered upon its record a judgment in accordance with the verdict and also entered upon its records an order reciting that plaintiff was granted an appeal from said judgment.

The question of jurisdiction is raised by amicus curiæ, not by any litigant. This action was brought in the circuit court of Jackson county, Mo. The sum demanded was $20.80, exclusive of attorneys' fees and costs. The attorneys' fee was costs, the amount of which was for the determination of the court. Section 2842, R.S.1929 (Mo.St.Ann. § 2842, p. 4630). Therefore, the sum demanded, exclusive of interest and costs, was $20.80, from which it follows that the court had no jurisdiction of the cause. Section 1938, R.S.1929 (Mo.St.Ann. § 1938, p. 2605); Knight v. Quincy, Omaha & Kansas City Ry. Co., 120 Mo.App. 311, 96 S.W. 716; Pike v. Farmers' Mutual Fire & L. Insurance Company of Polk County, 215 Mo.App. 303, 251 S.W. 115; Barnes v. Metropolitan Street Ry. Co., 119 Mo.App. 303, 95 S.W. 971.

The defendants suggest that the evidence shows that they were nonresidents of Jackson county; that one of them is a resident of St. Louis, Mo., and the other a resident of Savannah, Ga.; and, hence, under the provisions of said section 1938, the circuit court had jurisdiction, although the sum demanded was less than $50.

The record shows that the defendants offered in evidence a certified copy of their ex parte affidavit filed in the office of the secretary of state...