Westerhold v. Boese

Ellison, J. This is an action for unlawful detainer, wherein a summons was issued by the justice of the peace, on the twenty-third day of March, 1894, returnable on the thirtieth day of March, being less than ten days after issuance. The sole point for determination is the legality of a summons, under the forcible entry and detainer act, which is made returnable in less than ten days from the date of issuing. The trial court decided it to be a valid summons and defendant appeals. It is provided in section 5094, Revised Statutes, 1889, of the forcible entry and detainer act, that the summons shall be served at least five days before the return day. That is all there is in such act which may be said to fix a limit to the time when such summons shall be returnable; that it shall not be returnable in less than five days is apparent from the fact that it shall not be served less than five days before return day. But there is nothing in the act which fixes the maximum limit, nor which directly names the minimum. Eor this reason defendant contends that the general statute as to practice before justices of the peace applies. By the latter statute, section 6145, it is provided that a summons shall be returnable not less than ten, nor more than seventy-four days from the date thereof. And by section 6148, it is provided that service of such summons must be had at least ten days before the return day, except where it is otherwise provided by law. And [283] as to service, as before stated, it is otherwise provided in the forcible entry and detainer act, where it is enacted that the service shall not be less than five days. We think the legislature must have meant, when it enacted that five days7 service of a summons in forcible entry was sufficient, that the summons could be made returnable in as few a number of days as would permit such service. Furthermore, we have held that the forcible entry and detainer act was complete within itself and did not depend for direction of its proceeding on any other statute. We so held in the matter of appeal and notice thereof: Carter v. Tindall, 28 Mo. App. 316; Hastings v. Hennessey, 52 Mo. App. 176; and, as to amendments of statement: Johnson v. Fischer, 56 Mo. App. 552. The result is an affirmance of the judgment. All concur.