Citation Numbers: 200 Mo. App. 482
Judges: Allen, Becker, Jjconcur, Reynolds
Filed Date: 12/3/1918
Status: Precedential
Modified Date: 10/16/2022
— On June 4, 1914, Peter Hauptmann Tobacco Company, respondent here, filed its statement before Robert Walker, a justice of the peace of the Fifth District of the city of St. Louis, the statement being in the form of an affidavit, to the effect •that the plaintiff had a just demand against Henry Unverferth, defendant, the amount of which, and which plaintiff ought to recover after all just credits and set-offs, being $500, and that affiant has good reason to believe, and does believe, that defendant is about to move out of the State with intent to change his domicile, and that the damages for which action is brought are for injuries arising from the commission of some felony or misdemeanor, and that the debt sued for was fraudulently contracted on the part of the debtor.
While this was filed with Justice Walker, the statement, a blank form, evidently, entitles the cause as before Charles S. Luce, another justice of the same district. A bond was duly filed before Justice Walker, was approved by him and the cause entitled as be
It appears that the garnishment was dismissed as to the Northwestern Bank later and there was a return by the constable, setting out, among other things, service on defendant, summons to appear before the justice, and attachment of any moneys in the hands of the Broadway Savings Trust Company, and summoning it as garnishee to appear, etc., on June 4. 1914.
It seems that when the error in naming Mr. Luce as the justice before whom the cause was pending, was discovered, that plaintiff filed a new affidavit or complaint, entitling it as before Robert Walker, justice of
“Executed the within writ of attachment and summons in the city of St. Louis, Missouri, the 8th day of September, A. D., 1914, hy not finding the within named defendant, and further executed his writ in said city of St. Louis the - day of -, A. D., 191 — , hy attaching, as the property of said defendant the folio wing, personal property, to-wit:”
attaching any money in the hands of the Broadway Savings Trust Company and summoning it to appear.
Under date of October 1st, Justice Walker issued a writ, directed to Special Constable Thomas Browne of the Fifth District of the city of St. Louis, commanding him -to summon Henry Unverferth to appear before the Justice on October 15, 1914, to answer the complaint of the Hauptmann Tobacco Company, founded upon a writ of attachment wherein plaintiff demands $500. The writ bore this indorsement: “At the risk and request of the plaintiff, Thos. Brown, is hereby appointed Special Constable to execute and return this writ,” signed, “Robert Walker,” and on this the special constable Browne made return that he had served it by leaving a true copy at the usual place of abode of the defendant with a member of his family over the age of fifteen years. This return is sworn to hy the special constable. On October 15th, the justice rendered judgment by default in favor of plaintiff for $500 and against defendant. It appears that the Broadway Savings Trust Company
The defendant filed a motion in the circuit court to discharge the garnishment, setting out that he appeared solely for the purpose of making this motion; that the cause had been appealed from Justice Walker; that there'is no writ of attachment in the cause; that the constable has made return that on June 4, 1914, he served a garnishment notice on the Broadway Savings Trust Company as the garnishee of the defendant; that on October 15,1914, the justice entered an order sustaining an attachment against defendant in the sum of $500; that there was no lawful summons in the cause and no service of any summons, and that on October 15th the justice purported to render a judgment against defendant for $500; that the defendant did not appear for trial, or at ,any other time, in the justice’s court, wherefore defendant avers that the proceedings in the justice’s court are null and void and without jurisdiction and prays the court to enter an order that the garnishment he released and the funds of the defendant freed from the lien of the judgment, and that the judgment be set aside and for naught held and that the action he abated or dismissed. That motion came up for hearing before the circuit court and was submitted to the court upon the transcript, papers and matters heretofore referred to, and was overruled, plaintiff tendering a term bill of exceptions which was duly signed and filed of record. Thereafter defendant filed a plea .in abatement, setting out that he appeared specially and only for this plea and for no other purpose, and under protest, and on account of the previous rulings of the court compelling him to defend the action,
The' material evidence for plaintiff on the merits was, in substance, as follows:
A witness for plaintiff, who was night watchman, testified that he started on duty at the place of business of plaintiff at about half past five o’clock on the evening of May 30th and watched the place until the next morning, five or ten minutes after 5 o’clock. When he went to the place there were other men there. Defendant was there and stayed there about fifteen or twenty minutes and then went upstairs where he lived with his family; did not see defendant any more after he went out. Witness, after he got through with his work, sat in the office and watched the place; saw the safe in the office when he went in and it was locked; stayed on the premises all night except when he rang the boxes. There was a dog there watching the place— a good watch dog, and bad to any strangers who might attempt to come in; would not even let the drivers come in when he was loose; the dog was tied up in the daytime and turned loose in the evening when every one was gone; witness did not leave the stable or office during the night; saw defendant again in the morning, about ten minutes to five, come down to the office. Witness asked him what was the matter,
On cross-examination this witness said he did not know the combination of the safe and could not open it.
A police officer, witness for plaintiff, testified that the plaintiff’s premises were on his police heat. He was going to he relieved about five minutes past seven on the day in question; saw defendant sitting with his face toward the safe “tumbling” the combination on the safe — turning it; sitting on his chair with his face toward the safe. Witness only stayed there a few seconds; wanted to be relieved; that was about 6:40 to 6:45 in the morning. When he left on that morning he met defendant at the corner of Ninth and Chambers Streets, about two and a half blocks north and a block west of the stable; he was running south on Ninth Street; it was then about two minutes of seven. Witness asked defendant what was the matter, and he said, “The money is gone out of the safe.” Witness then said to him, “Why, you did not say anything when I was in there,” to which defendant said, “Well, 1 could not get the safe open.” Witness said to him, “Do you mean to tell me it is really gone,” and defendant said, “Yes.” Defendant was then going toward the stable and witness went back with him, first going to the station and reporting to the sergeant, and the sergeant and two other officers and himself went down to the stable. Witness said when they got to the stable and looked at the safe, the outer door of it was open and defendant told them to ‘ ‘look in there.” They looked in and there was nothing there and defendant said, “The money is gone.” He and the other officers asked the defendant about the matter and they went up to the living room occupied by defendant and his family; looked through the premises,
Another witness, treasurer for the plaintiff, testified that he occupied that' position on May 30, 1914; described the safe. There was a combination on the outside and also on the inside and both locked. Defendant had the combination and the key and witness had the combination. ■ Defendant had been employed there about seven years. His duty was to take the money from the drivers and put it in the safe and give it back to the drivers in the morning. When witness was called to the premises on the morning of the 31st the money was gone. Several police officers were there; so was the defendant. This witness also testified that the dog was there, and that it was a vicious dog that would not let anyone go in there except the watchman.
' Another witness, the vice-president for plaintiff, testified that he had not known that defendant called at his house on Sunday morning; got notice of the robbery at a quarter of eight when the policeman told him of it. Defendant had been in their employ several years when they found the money and checks were gone; plaintiff had got back five or six dollars represented by a check; had tried to recall as. many checks as they could, and started to trace them but only got five or six dollars of it. According to the collections that had been made from the drivers there was $601 in the
This was the testimony for plaintiff and, as before stated, there was a verdict in favor of plaintiff and against defendant on the plea in abatement of the attachment as well as on the merits. We think this made a case for the jury, defendant’s contention to the contrary.
It is a vexed and not yet entirely settled question in this State as to how far a defendant, on his appeal to the circuit court from a judgment before a justice of the peace, can challenge the jurisdiction of the justice over his person. We last had that question before us in the case of Powell v. St. Louis, I. M. & S. Ry. Co., 178 S. W. 212, a ease not to be officially reported. In that case we at first held that the court erred in overruling the defendant’s motion to dismiss the case and in giving judgment for plaintiff. On a motion for rehearing, however, we held on the authority of the decision of our Supreme Court in Lesan Advertising Co. v. Castleman, 265 Mo. 345, 177 S. W. 597, that our judgment first rendered in the Powell Case was wrong and quoted from the Lesan Case this (l. c. 217, 178 S. W., 265 Mo. l. c. 351).
“The jurisdiction of the person of appellant was complete by his appearance in the justice’s court at the trial, by taking the appeal, and thereby going voluntarily into the circuit court (Boulware v. Railroad, 79 Mo.*494 494; Revised Statutes 1909, sec. 7568), and by bis general appearance in tbe circuit court.”
And we added (171 S. W. l. c. 217):
“It is true tbe last words above quoted indicate a general appearance in the circuit court, which is something more than was had in the instant case; but the statute is cited as though it should be adhered to, and so, too, is the rule of Boulware v. Railroad. The Boulware Case and the statute both declare that the taking of the appeal from the justice is sufficient to operate a waiver of service of process and to enter the appearance of the party appealing. This we regard as sound law and under the Constitution it becomes our duty to affirm the judgment in conformity to the last ruling of the Supreme Court on the subject.” (“The Boulware Case” is in 79 Mo. 494).
Holding, however, that our decision in the Powell Case was contrary to those of the Kansas City Court of Appeals and of the Springfield Court of Appeals in cases cited, we certified the Powell Case to the Supreme Court where it is still pending and undetermined That case, however, is not altogether parallel in its facts to the case át bar. In the case at bar defendant did not appear in the justice’s court until appearing there to take an appeal. He first raised the question of the jurisdiction of the justice on account of the lack of proper service in the circuit court, there entering his appearance especially, for the purpose of making that defense.
Beyond doubt there was no proper service on defendant, for a specially appointed constable cannot serve a writ in attachment. Section 7424, Revised Statutes 1909, is limited to process issued under article 3, of chapter 65. [Mangold v. Dooley, 89 Mo. 111, 1 S. W. 126; Mitchell v. Shaw, 53 Mo. App. 652.] Nor was there valid service of the writ of attachment and garnishment. The only one duly served was dated back after it was served and not reserved and the subsequent writ was not served.
But defendant went to trial on his motion to dismiss, then on his plea in abatement, then on the merits.
In the light of the statute, section 7568, Revised Statutes 1909, the concluding clause of which reads: “Provided, that the affidavit and bond for appeal filed shall be taken.and considered by the appellate court as an entrance of appearance,” as also of section 7579, Revised Statutes 1909, which reads:
“Upon the return of the justice being filed in the clerk’s office, the court shall be possessed of the cause, and shall proceed to hear, try and determine the same anew, without regarding any error, defect or other imperfection in the original summons or the service thereof,' or on the trial, judgment or other proceedings of the justice or constable in relation to the cause,” and of the last decisions of our Supreme Court in the Lesan Advertising Company Case, supra, and Thomasson v. Merchantile Town Mutual Ins. Co., 217 Mo. 485, 116 S. W. 1092, we hold that the defendant here lost the benefit of his several pleas going to the jurisdiction of the • justice over his person by going to trial on the merits.
How far this affects the question of the validity of the attachment, if that point was raised by either this defendant or by the garnishee, we are not here determining, as we "do not consider that that question is before us on the appeal.
That the personal judgment is valid as against defendant, we think is clear. Whether the fund attached can be held is therefore not material, as defendant Has
It follows that the judgment of the circuit court should he and it is affirmed.