McQuoid v. Lamb , 1885 Mo. App. LEXIS 197 ( 1885 )

Rombauer, J.,

delivered the opinion of the court.

In an action of forcible entry and detainer the circuit court is not a court of original, but of appellate, jurisdiction. Under our statute, exclusive original jurisdiction vests in justices of the peace. It results from this, that no presumptions can be indulged by this court, in reviewing a judgment rendered by the circuit court, in such action, either in favor of the jurisdiction of the justice, or in favor of the jurisdiction of the circuit court. It is incumbent upon the party who claims under such judgment, affirmatively to show that the justice had jurisdiction in the premises originally, and that the circuit court subsequently acquired jurisdiction by certiorari, or appeal.

It appears in this case that an action of forcible entry was instituted by the plaintiffs, before a justice of the peace in Knox County, against Christiana E. Lamb, and others. The statement filed by them with the justice is not preserved in the record, and it does not appear whether such statement was in substantial conformity with the provisions of section 2423, Revised Statutes, a conformity with which is an essential prerequisite to the justice’s jurisdiction. Fletcher v. Keyte, 66 Mo. 285.

The cause was subsequently removed to the circuit court by certiorari. The writ of certiorari performs no other office than to remove the cause pending before the justice to the circuit court. If the justice had no jurisdiction in the cause, owing to the failure of filing a sufficient complaint before him, the circuit court can acquire none by removal.

In the circuit court the plaintiffs filed an amended complaint. The defendant, Christiana, moved to dismiss, but the court overruled her objection, and, upon trial, there was a verdict and a judgment against her, from which she appeals.

It is cleár upon the record before us that her motion to dismiss should have been sustained, as the justice’s jurisdiction does not appear. Even if her motion to dismiss did not assign proper grounds, the objection was not waived by subsequent appearance and joining issue. If the circuit court had no jurisdiction of the cause, the consent of the parties, even if such consent could be implied, could confer no jurisdiction upon it. Robinson v. Walker, 45 Mo. 120.

For the reasons above stated, the judgment must be reversed and the cause dismissed. It is so ordered.

All the judges concur.