Pearson v. Gillett

Smith, P. J. This was an action by attachment commenced by the plaintiff against the defendant and one Smith before a justice of the peace to recover damages for injuries to the plaintiff’s crops. The action was dismissed before the justice as to Smith. The remaining defendant filed no plea in abatement. There was a trial on the merits which resulted in judgment for the plaintiff, and from which defendant appealed to the circuit court, where the defendant was permitted to file a plea in abatement. A trial was had before the court on both the plea in abatement and the merits, which resulted in a judgment for the defendant on the issue made by the plea in abatement, and in favor of the plaintiff on the merits, for the sum of $130, and from which latter judgment the defendant took an appeal here. The defendant has assigned several grounds for the reversal of the judgment. The first which we shall notice is, that the circuit court obtained no jurisdiction of the. subject-matter of the cause by appeal from the justice for the reason that the, affidavit for the appeal fails to show whether the appeal is from the merits or the judgment taxing costs. Revised Statutes, sec. 6330. Conceding that the affidavit is. defective in the particulars indicated, still we must think the objection to the jurisdiction not well taken. The circuit court, it may be assumed, had concurrent original jurisdiction with the justice of the peace over the subject-matter of the action. Revised Statutes, sec. 3318. The ■record shows that the justice by an entry on his docket granted the appeal and thereafter filed in the office of the clerk of the circuit court a transcript of his docket entries together with all other papers relating to the [317] suit, in conformity to the statutory requirements. Revised Statutes, secs. 6332, 6337. ' Now, suppose the affidavit was defective; yet, since the defendant voluntarily appeared in the circuit court and went to trial on the merits without making any objection to' the sufficiency of the affidavit or the defect of jurisdiction, this must be construed as an admission by him that he was subject to the jurisdiction of the courtin the case andas a waiver of all previous defects in the manner of taking the appeal. The case is not different than if the complaint had been originally filed in the circuit court and the defendant had voluntarily appeared thereto and proceeded to trial without the previous service of notice or process. After judgment he could not be heard to controvert the jurisdiction of the court. Sampson v. Thompson, decided at the present term. Page v. Railroad, 61 Mo. 78; Bohn v. Devlin, 28 Mo. 319; Orear v. Clough, 52 Mo. 55, 118; Griffen v. VanMeeter, 53 Mo. 430; Peters v. Railroad, 59 Mo. 406; Kronski v. Railroad, 77 Mo. 362; Bates v. Scott Bros., 26 Mo. App. 428; Pry v. Railroad, 73 Mo. 127; Griffin v. Samual, 6 Mo. 52; McQuillan’s- Pleading and Practice, sec. 331. The jurisdictional point must be ruled against defendant. It is always proper for the trial court to permit the reopening of plaintiff’s or defendant’s evidence when once closed, if the ends of justice at the time appear to require it (Taylor v. Cayce, 97 Mo. 243); and so it is not perceived that the action of the trial court complained of in this regard was improper. As to the objection that the plaintiff should not have been permitted to prove the actual possession or ownership of the land upon which the trespass was committed because it had not been alleged in the statement of his cause of action, it is sufficient to say that no such objection was taken at the trial and made the [318] basis of an exception and preserved in the bill oí exceptions; but, if so, we think the statement sufficiently alleges the ownership and possession of the land, and so this point must likewise be ruled against the defendant. The case was tried by the court without the intervention of a jury. No instructions were asked or given. And, as there seems to have been some substantial evidence to support the judgment, we must presume the trial court entertained a correct view' of the law, and so we cannot disturb its judgment. The plaintiff in his brief insists that the judgment for. the defendant on the plea in abatement should be reversed for certain reasons therein mentioned. But as no exceptions were taken and preserved to the rulings of the court in respect to the disposition of any matter pertaining to that branch of the case, there is nothing before us for review. It results that the judgment of the circuit court will be affirmed. All concur.