Carter v. Wamack & Staggs

Smith, P. J.

This is an action brought before a justice of the peace, to recover $3.50 for work and labor. There was no bill of items of the account filed with the justice before whom the suit was brought. On the return day of the summons, the defendants appeared and applied for and obtained a change of the venue of the cause to another justice. On the day the cause was set for trial before the latter justice, the defendants generally appeared and filed a motion to dismiss the action, because the plaintiff had not filed a bill of items of his .account. Pending the motion, the plaintiff filed a proper account. The parties thereupon proceeded to the trial of the cause, which resulted in judgment for the plaintiff and from that judgment the defendant appealed to the circuit court. When the cause reached *341 the latter court, the defendants did not specially appear, but appeared generally, and renewed their motion to dismiss, which was by the court sustained, and judgment was given accordingly, and from which plaintiff has appealed.

It is clear from the foregoing statement of the facts, about which there is no dispute, that the action of the circuit court in dismissing the suit was such an error as requires at our hands a reversal of the judgment.

It may be conceded that, on account of the failure of the plaintiff to file an account with the justice before whom the suit was brought, there was a total lack of jurisdiction; but the filing of the application for the change of venue was an appearance in the cause. Speer v. Burlingame, 61 Mo. App. loc. cit. 83; Feedler v. Schroeder, 59 Mo. 364 . And the voluntary appearance of the defendants in the cause before the justice to whom it was sent, conferred jurisdiction over their persons. But if this be not so, it is indisputably true that, by the general appearance of defendants, the filing of their motion to dismiss, and the participation in the trial had before the latter justice, jurisdiction was acquired over their persons. Buzzard v. Hapeman, 61 Mo. App. 464 . If there was no jurisdiction up to the point where the plaintiff filed the account, yet if, after that omission was supplied, the defendants proceeded to trial on the account, they ought not to be heard in any court to dispute the jurisdiction. The case is not different than if, after the plaintiff filed his account, the defendants had appeared and contested the same in a trial before the justice. R. S., 6202, 6203, 6226, 6272; Pearson v. Gillen, 55 Mo. App. 312 . Unquestionably the justice had jurisdiction after that.

Not only this, but when the defendants appealed to the circuit court, the effect of this was a general ap *342 pearance by them to the merits, in the circuit court. Rice v. Railroad, 30 Mo. App. 110 ; Boulware v. Railroad, 79 Mo. 494 ; Gant v. Railroad, 79 Mo. 502 ; Fetterling v. Railroad, 79 Mo. 504 . The three last named cases, in effect, overrule the prior ruling of the supreme court in Brandenburg v. Easely, 78 Mo. 659. So that, in any view that we have been able to take of the case, the circuit court had jurisdiction of the persons of the defendants and should have proceeded to the trial of the cause de novo instead of dismissing it as was done.

The judgment will be reversed and cause remanded, with directions to reinstate the cause on the docket for further proceedings therein according to law.

All concur.