Opinion
November 8, 1943.
1. — Justice of the Peace — Jurisdiction. In replevin action justice held to have acquired jurisdiction on change of venue of the parties and the subject-matter, though the record did not show that proper statutory notice in writing of change of venue was given or posted fifteen days before time fixed for trial.
2. — Execution — Jurisdiction — Waiver. In replevin action though plaintiff's testimony was somewhat in conflict with record entries of justice, circuit court properly denied plaintiff's motion to quash the transcript and execution, where record of justice showed a change of venue, and that plaintiff waived statutory notice of trial and requirement that the cause be set for trial within twenty days, and consented that cause be set for trial on May 5th and later requested a continuance until May 20th (Secs. 2642, 2646, R.S. Mo. 1939).
3. — Justice of the Peace — Notices — Waiver. Written notice required by statute to be given of the setting of cause for trial in justice court may be waived and a verbal notice accepted.
Writ of error to Nodaway Circuit Court. — Hon. Ellis Beavers, Judge.
AFFIRMED.
R.F. Mumford and Ellis G. Cook for plaintiff in error.
(1) The motion to quash is the proper remedy. Dewey v. Union Power Light Co., 83 S.W.2d 205; Kristanick v. Chevrolet Motor Co., 70 S.W.2d 890, 894; Barkard v. Hann, 17 S.W.2d 636; Robinson v. Martin Wunderlich Const. Co., 72 S.W.2d 127; Platies v. Theodorow Bakery Co., 79 S.W.2d 504; Harrison v. Slaton (Mo.), 49 S.W.2d 31. (2) The notice to the parties in writing, or the posting of the notice, is jurisdictional and indispensable. Sec. 2642, R.S. Mo. 1939. (3) Jurisdiction of the justice may be challenged in the circuit court. Fabien v. Grabow, 134 Mo. App. 193, 114 S.W. 80. (4) The jurisdiction of the circuit court is not based upon any judicial act of the justice, but is based upon the power of the justice originally to hear the issue presented to him. State ex rel. v. Mosman, 112 Mo. App. 540, 87 S.W. 75. (5) Failure to give written notice of a change of venue cannot be considered. Idalia Co. v. Norman, 184 Mo. App. 146, 168 S.W. 643. (6) If it appears from the whole record that the justice had no jurisdiction, the circuit court acquired none on appeal. Iba v. Railway, 45 Mo. 469. (7) A justice's judgment failing to comply with the statutory requirements is not void unless he acted entirely without jurisdiction. Meyer v. Singletary, 75 Mo. App. 481. Where a transcript of judgment in the justice court is filed in the circuit clerk's office, the circuit court has jurisdiction to order the same modified so as to conform to the statute. Carter v. Exposition Co., 124 Mo. App. 530, 102 S.W. 6. (8) If answer is a general denial, and no demand made for a return of the property, judgment must be against the plaintiff and not against him and his sureties. Drug Co. v. Dart, 7 Mo. App. 590; Cummings v. Lbr. Co., 130 Mo. App. 557, 109 S.W. 68. If defendant desires to recover possession of the property it is his duty to claim and demand return by answer. Cartmell Co. v. Sikes, 83 Mo. App. 565. (9) If Justice James W. Decker ever had jurisdiction, he lost it by continuing the case eight months. Publ. Co. v. Sleater, 130 S.W.2d 192.
Livengood Weightman for defendant in error.
(1) The justice had jurisdiction to render this judgment under the plain provisions of Sec. 2645, R.S. Mo. 1939, which is controlling in this case, and this case is not governed by the provisions of Sec. 2646, R.S. Mo. 1939. Plaintiff in error gave the court jurisdiction by the institution of this suit and jurisdiction once acquired cannot be lost. 15 C.J. 798, 822; State v. Yeager, 157 Mo. App. 328.2d Furthermore, plaintiff in error having instituted this suit and obtained the property is now estopped to question the jurisdiction of the justice. State ex rel. v. Ellison (Mo.), 191 S.W. 49, 51, 52; Abbington v. Steinberg, 86 Mo. App. 639; Development Co. v. Norman, 184 Mo. App. 152, 154. (3) Plaintiff in error cannot institute the suit, take a change of venue, close his eyes to all subsequent proceedings and then claim lack of jurisdiction, especially where he has notice. Development Co. v. Norman, 184 Mo. App. 154. (4) Plaintiff in error having instituted the suit, and obtained possession of the property, cannot thereafter abandon his cause of action and thereby escape a judgment against him for the return of the property and against him and his sureties for the damages caused by his actions. Munley v. King, 40 Mo. App. 534; Ranney v. Thomas, 45 Mo. 111; Collins v. Hough, 26 Mo. 149; Berghoff v. Heckwolf, 26 Mo. 511. (5) Even where no answer or counterclaim is filed, the court had jurisdiction to adjudge the return of the property to the defendant in error and to render judgment against plaintiff in error and his sureties on the bond. Gurley Bros. v. Bunch, 130 Mo. App. 665, 668; Wheaton Motor Co. v. Duckett, 120 S.W.2d 196, 197. (6) Defendant in error, having been adjudged the return of the property, was also entitled to a judgment against plaintiff in error and his sureties on the replevin bond. Cummings v. Lumber Co., 130 Mo. App. 557. (7) The motion to quash will not lie in this case. Such motion constitutes a collateral attack on the judgment. Hays v. Hulet (Mo. App.), 14 S.W.2d 699; Burkhard v. Hahne, 17 S.W.2d 636; 34 C.J., par. 856, pp. 555-558 and cases cited; Abernathy v. Mo. Pac. Ry. Co., 228 S.W. 486.
This cause reaches this court on a writ of error directed to the Circuit Court of Nodaway County, Missouri. The plaintiff in error was plaintiff in the lower court and defendant in error was defendant in the lower court, and they will be referred to in that manner.
The facts giving rise to the matters now before us are: In August, 1941, plaintiff instituted a replevin suit in the Justice Court of one Roelofsom, a Justice of the Peace of Polk Township, in Nodaway County, to recover the possession of an electric washing machine which had previously been sold to defendant under an installment payment note and chattel mortgage, which note was then in default. Some time thereafter, defendant was granted a change of venue from the Justice Court of Roelofsom to Justice Ray Eckles in the same township and county. On September 10, 1941, the plaintiff applied for and was granted a change of venue from the Court of Justice Eckles to the Justice Court of James W. Decker, a Justice of the Peace for Hughes Township, Nodaway County. Justice Decker received the transcript and papers from Justice Eckles some time in September. On October 4, 1941, Justice Decker entered this order of record: "It now appearing that it is impossible for this court to have a trial except on Saturdays and further appearing that many of the witnesses cannot appear on Saturday, it is now necessary that this cause be and it is now continued until May 20, 1942." The next record made by Justice Decker is: "May 2, 1942, telephoned plaintiff and attorney and by agreement of both parties, trial set for May 5, 1942, at one o'clock in the afternoon . . ." The next entry of record is of May 5, 1942, to the effect that one Horace Merritt (an attorney), representing plaintiff, advised the Justice that plaintiff cannot be ready for trial on the 5th of May "and upon his request cause again continued until May 20, 1942." The next entry is "May 9, 1942, advised plaintiff H.L. Hoecker and attorney for defendant by mail this date of resetting of cause for May 20, 1942." On May 20, defendant appeared in the justice court but the plaintiff came not, and the justice found that that plaintiff was not entitled to the possession of the washing machine described in the replevin suit and ordered return thereof, and assessed the value at $100 and damages for taking and detention at $150, and rendered judgment accordingly. A transcript of the judgment was filed in the Circuit Court of Nodaway County, execution issued and levy made on plaintiff's property. Whereupon plaintiff filed motion to quash the transcript of the record made in the Court of Justice Decker and to quash the execution and levy thereunder made by the sheriff, for the reason that the judgment rendered by Justice Decker was absolutely void for want of jurisdiction of the justice, as shown by the face of the transcript of judgment. A hearing was had on such motion and overruled by the circuit court, and plaintiff sued out writ of error lodging the cause in this court.
Plaintiff in error asserts "that there is only one issue to be decided in this case. That issue is, did the justice have jurisdiction to render a valid judgment for either litigant on the 20th day of May, 1942?" He contends not, because the record of the justce court "fails to disclose any entry of the fact that he sent, or caused to be sent out, notices in writing, or to post the notices in his office of the change of venue fifteen days before the time fixed for such trial." The burden of his argument is that since the justice's record does not affirmatively disclose the giving or posting of the notice, as required by Section 2642, Revised Statutes Missouri, 1939, that the justice never acquired jurisdiction of the parties or of the subject-matter.
He cites no authority to support that contention but relies on a construction of said section.
This contention cannot be sustained. In the case of Cullen v. Collison, 110 Mo. App. 174, this court, under a set of facts very similar to the present, specifically held that the justice court to which the transcript was sent on change of venue acquired jurisdiction of the parties and the subject-matter even though proper notice was never served or posted under this statute. This ruling was approved in Hess v. Fox, 140 Mo. App. 437, l.c. 440.
The next question is, did the plaintiff waive the giving of the notice required by Section 2642, supra? The records of the justice as above set out clearly indicate that the plaintiff did waive the giving of such notice and consent that the cause be set for trial. However, the oral testimony offered by plaintiff, in the circuit court, was to the effect that he had not consented to a setting of the cause. He did admit that Justice Decker had called him on the telephone concerning the case, but was uncertain about just what was said between them at that time. He immediately went to see his attorney and found he was out of his office, but discussed the matter with attorney Horace Merritt, who was in the same office but not a law partner of plaintiff's attorney. He told Mr. Merritt about the Decker conversation, and said, "I don't know what to do about it", and Mr. Merritt replied, "I will talk to him", referring to Decker, and plaintiff replied, "O.K. and left it to him". Mr. Merritt testified that he remembered talking to the justice and to defendant's attorney over the telephone about the matter and that defendant's attorney advised him that one of defendant's witnesses was soon to be called into military service and that the case would have to be set down for trial and that they discussed the advisability of a written statement being taken from such witness with the right of plaintiff to object to its relevancy, and Merritt stated that he was sure plaintiff's attorney would agree that be done. He later advised plaintiff's attorney of that conversation. As a result of these conversations with plaintiff and Mr. Merritt, the Justice of the Peace, on May 8th, wrote plaintiff advising him that the trial had been set for May 20th, who took the letter to his attorney, and on May 11th, the attorney wrote the justice acknowledging receipt of the letter and advising that the plaintiff would not appear at such hearing because, under Section 2646, Revised Statutes Missouri 1939, the justice was without any jurisdiction to render a valid judgment because the case was not set for trial within twenty days as provided by said section.
While plaintiff's oral testimony is somewhat in conflict with the record entries of the justice made at the time of the conversations, we are forced to the conclusion that there is very substantial evidence that plaintiff waived the giving of the notice. This would support the order of the trial court in quashing the motion.
While it is true that Section 2642 requires that written notice be given the parties of the setting of the cause for trial, nevertheless it has been specifically held that such notices may be waived and a verbal notice accepted as in any other matter or case. [Idalia Realty Development Company v. Norman, 184 Mo. App. 146, l.c. 152; Griffin v. Van Meter, 53 Mo. 430.]
If, as we hold, the giving of the notice was waived, then there is no merit in the contention that Justice Decker lost jurisdiction of the parties and the cause by not setting the case for trial within twenty days, as provided in Section 2646, supra. That requirement was also waived.
Finding no reversible error the judgment must be affirmed. It is so ordered. All concur.