Mansur v. Linney

JOHNSON, J.

Plaintiff sued in a justice court to recover a real estate agent’s commission alleged to be due bim frqm defendant. He filed a written statement of bis cause of action in wbicb be alleged that bis contract of employment was in writing, but be failed to file tbe contract with tbe justice at any time. Defendant was served with summons, appeared at tbe trial and demanded a jury. Tbe trial resulted in a verdict and judgment for plaintiff and defendant appealed to tbe circuit court. Both parties appeared at tbe ensuing term, plaintiff waived notice of appeal and by agreement tbe cause was continued. At tbe next term, defendant filed a motion to dismiss tbe cause on tbe ground that neither tbe justice court, where tbe action originated, nor tbe circuit court where it was taken by appeal, bad jurisdiction over the subject matter, for tbe reason that tbe written contract, wbicb tbe statement declared was tbe foundation of the cause of action, was not filed in tbe justice court during tbe pendency of tbe action in that court.

This motion was sustained, the suit was dismissed, and plaintiff appealed.

There is no controversy over tbe fact that plaintiff, in bis statement, pleaded a cause of action founded on a written contract and tbe question for our determination is whether or not tbe statutory command (section 3853, Rev. Stat. 1899, 7413 Rev. Stat. 1909) that “when tbe suit is founded upon any instrument of writing purporting to have been executed by tbe defendant and tbe debt or damages claimed may be ascertained by such instrument tbe same shall be filed with tbe justice,” is jurisdictional or merely directory. If it is jurisdictional, tbe failure to file tbe contract before tbe jury was sworn ipso facto divested tbe justice of authority to proceed with tbe trial and tbe subsequent proceedings were void for want of jurisdiction over tbe cause, but on tbe other band, if tbe statutory command is merely directory tbe non-compliance of plaintiff would not affect the jurisdiction of the justice to proceed in the cause, nor of the circuit court to hear it anew on appeal, and the failure of defendant to complain of the omission in proper time, i. e., before trial in the justice court, would constitute a waiver of his right to complain.

The decision of this question calls for the construction of sections 3852 and 3853, Rev. Stat. 1890 (7412 and 7413, Rev. Stat. 1909).

In support of his contention that the requirement of the statute is directory, plaintiff cites the following cases. [Sublett v. Noland, 5 Mo. 516; Insurance Co. v. Beckman, 47 Mo. l. c. 98; Kleiboldt v. Grober, 6 Mo. App. 574; Trust Co. v. Investment Co., 82 Mo. App. 260; Keyes v. Freber, 102 Mo. App. 315; Foundry Co. v. Furnace Co., 113 Mo. App. 566; Widman v. Insurance Co., 115 Mo. App. 342.] In the Sublett case, decided in 1836, the Supreme Court said:

“Admitting that this instrument is such a one as is contemplated by the statute (Sec. 6, page 350, R. S. 1835] and ought to have been filed on the issuing of the summons, I understand the statute requiring the instrument to be filed, to be merely directory. The act was passed for the benefit of defendant to apprise him of the nature of the claim set up by the plaintiff; and this advantage and benefit, thus secured to the defendants may be waived by their own acts.”

In Insurance Co. v. Beckman, supra, decided by the Supreme Court in 1870, it was said:

“The note embraces the contract upon which the action is founded, but the fact that the plaintiff failed to file it was not fatal to the suit. It was an irregularity which could have been corrected by filing the proper paper when the objection was raised, and does not vitiate the judgment if the trial is suffered to proceed without raising it.”

In Kleiboldt v. Grober, the St. Louis Court of Appeals held:

“Failure to file the instrument which is the foundation of the action, or an affidavit of its loss, does not go to the jurisdiction in an action before a justice. The statute is merely directory, and the objection is waived if not made before the justice. ’ ’

In Keyes v. Freber, decided in 1903, it was held by the St. Louis Court of Appeals:

“Our Code of Civil Procedure requires a plaintiff or defendant, when his claim or counterclaim is founded on a written instrument executed by the other party, to file the instrument with the pleading. The object of these statutes is to require the party relying upon the written instrument to establish his demand, to make profert of the written instrument contemporaneous with the filing of the demand. And while, when filed in a justice’s court it serves as a complaint and is a profert of the instrument, it has never been held that the filing of it is essential to confer jurisdiction on the justice, but that the omission is cured by filing it after the suit has been commenced, or if the cause is appealed, by filing it in the circuit court, or by the defendant entering his general appearance. [Boatman v. Curry, 25 Mo. 433; Ins. Co. v. Beckman, 47 Mo. l. c. 89; Schenck v. Stumpf, 6 Mo. App. 381; Kleiboldt v. Grober, 6 Mo. App. 574; Trust Co. v. Real Estate Co., 82 Mo. App. 260.]”

And in Widman v. Ins. Co., decided in 1905, the same court, speaking through Judge Goode, reiterated the same doctrine in the following language:

“But it never has been the doctrine of this court . or of the Supreme Court, that failure to file an instrument which is the foundation of an action brought before a justice, so wdiolly deprives the justice of jurisdiction that any judgment rendered in a cause will be void. It is ground for a motion to dismiss, if such a motion is made; but the instrument may be filed before the jury is sworn or the trial begun. In order for the non-filing of the policy wdth the justice to be reversible error on the present appeal, wherein we can look only to the record proper, it must be absolutely fatal to jurisdiction, which we think is not the law.”

Defendant admits the cases quoted hold “that it was optional with the plaintiff whether he filed the instrument sued on, 'or filed a statement of his account, or filed a statement of facts constituting his cause of action,” but argues that these decisions construe the statute appearing in the Revision of 1899' as section 3852, which was the only statute dealing with the subject prior to 1879, and do not give effect to section 3853, Rev. Stat. 1899, which first appeared in the Revision of 1879. We quote from the argument of counsel as follows:

“The contention of counsel for apellant would be plausible if section 3852 were to be considered alone, but since the enactment of section 3853, which now forms an essential part of the complete system, these two sections must be read and considered together as component parts of such system and practice. Under the former section there is some authhority for saying plaintiff might file the instrument relied on he might file an account, or he might file a statement of tbe facts constituting his cause of action, but not so after the adoption of the latter section specifically designating when he may file each of these; so decisions construing the first section as it stood alone, are not controlling since the passage of the latter section particularizing the order and manner of doing the things mentioned in the former section.

‘ ‘ Some of the decisions cited by appellant refer to the first section only, and have to do with facts occurring before the latter was enacted, while other cases cited and relied on, though rendered after the act of 1879 went into effect, only refer to the former, entirely overlooking the latter section and the decisions construing it.”

The two decisions of the Supreme Court being rendered before 18791, of course, are based on the statute law as it stood prior to the revision of that year, but we find no reason for saying the St. Louis Court of Appeals overlooked the effect that should be given the provisions of section 385*3, in the decisions rendered since 1879, and we find that court has constantly adhered to the view that the statutory requirement under consideration is merely directory. And further, we think the Supreme Court decisions, though rendered before 1879, announced the rule that still should be drawn from the statutes notwithstanding the revision of 1879. Defendant is in error in the conclusions that the legislative intent expressed in that revision was to make the filing of the written instrument sued on a jurisdictional prerequiste to the prosecution of the action to a trial in the justice’s court. The language of the statutes as they now stand was no more peremptory with respect to the filing of the instrument than that considered by the Supreme Court in the two cases cited. Section 3852 (Rev. Stat. 1899), itself, first appeared in the revision of 1879 as section 2851. Its component parts were three separate sections that had been on the statute books since 1835, viz., sections 9, 12, and 13, General Statutes 1865, pp. 700 and 701. Section 9 provided: “Whenever any suit shall be founded on any instrument of writing purporting to have been executed by the defendant such instrument shall be filed with the justice before any process shall be issued in the suit.” Certainly this language is as mandatory as any found in the present statutes, and yet the Supreme Court held that it was merely directory,. since it was passed for the benefit of the defendant and he might waive that benefit if he so desired. We hold that the filing of the contract was not essential to the jurisdiction of the justice over the subject matter and that the learned trial judge erred in sustaining the motion to dismiss. To the extent that the decision of this court in Insurance Co. v. Foster; 56 Mo. App. 197, may he in conflict with the views expressed, it will he overruled.

The judgment is reversed and the cause remanded.

Broaddus, P. J. and Ellison, J., concur in separate opinions.