State Ex Rel. Kelly v. Trimble , 297 Mo. 104 ( 1923 )

The core of the opinion is the holding that in unlawful detainer a justice of the peace can acquire no jurisdiction ofthe subject-matter unless there is service upon the defendants, either personal or by publication; that a defendant cannot appear in such a proceeding and give jurisdiction to proceed. In the opinion it is stated that there is no pretense that the complaint was ever served upon the relators. The Court of Appeals in its opinion refers to the service in the unlawful detainer action and, according to the principle of numerous decisions, thereby brings into the record the constable's return of service, if the service is to be questioned. That return is found on pages 40 and 41 of the record before the Court of Appeals and in so far as it has to do with Harry H. Tammen (one of the relators in this court) and Paul LeMarquand and A. LeMarquand is to this effect: "Executed this writ in the Township of Kaw, this 2nd day of November, 1915, by reading the same complaint and summons to the within named defendant Harry H. Tammen, Paul LeMarquand, A. LeMarquand." Duly signed. In their briefs in the Court of Appeals relators did not question the fact or the sufficiency of the service on the three last named defendants. In their application to this court for the writ of certiorari they did not question it. In their suggestions in support of their application in this case they expressly state the facts of such service on the three. In their brief in this case (pp. 52, 53) the service upon three of the defendants is treated as a fact and an argument based upon it as such. Relators do not deny it. Their position has been that service upon all defendants in an action for unlawful detainer was necessary to give any of the seven defendants the right to sue out a writ to remove the case into the circuit court; that the writ must be sued out by all or it cannot be sued out at all.

It is clear that no decision cited in the opinion holds as the court holds in this case. No conflict is made to appear between any decision of this court and the construction given the statutes in this case on the point actually decided by the Court of Appeals. In fact the Court of Appeals followed, closely in principle, decisions of this court. [Ser v. Bobst, 8 Mo. 506; Hulett v. Nugent, 71 Mo. l.c. 135.] If it be said that the question of conflict is not determinative here because this court is holding that the circuit court and the court of appeals (and this court) never had jurisdiction, then this decision is squarely in conflict with that in State ex rel. Coonley v. Hall,296 Mo. 201, which was handed down December 6, 1922. By the ruling in that case the Court of Appeals is a court of final jurisdiction on the questions of its jurisdiction arising out of the record before it quite as much as upon other questions in the case. Cases are cited. The cases mentioned are necessarily overruled by the decision in this case, though no reference is made to them.

Further, if it is meant, and that is necessarily implicated, that a plaintiff in unlawful detainer may not proceed to judgment against less than all of the defendants named in the justice's court, the ruling is in conflict with other decisions and authorities.

Since the holding of the Court of Appeals, that jurisdiction of the person and to proceed in unlawful detainer can be conferred by appearance, is not in conflict with any decision of this court on the point, that question is not before this court for decision on its merits. Nevertheless, since the majority opinion expressly decides it, there can be no impropriety in saying that, on the merits of that question, this court ought not construe the statutes as the majority opinion does unless they are subject to no other reasonable construction. The idea that one may not appear in a case, but must be summoned, to confer jurisdiction, is out of harmony with the correct conception of the function of service. Service is a means of bringing one into court against his will. It is a means of doing something for which there can be no need if the party comes into court voluntarily. It is notice of the suit. The statutes in question do not declare that one may not voluntarily take notice and appear and go on with the case. They ought not to be so construed unless they make such a meaning clear. This they fall short of doing.

These are some of the reasons because of which I am unable to concur. Very respectfully, I dissent.