Hull v. Beard

SMITH, P. J. This is an action by attachment which was commenced before a justice of the peace under section 6384, Revised Statutes, to secure the payment of rent thereafter to become due. On the issue raised before the justice by the plea in abatement the defendant had judgment dissolving the attachment. The plaintiff appealed. There was no trial or judgment on the merits before the justice. In the circuit court there was again a trial of the issue resulting in judgment for plaintiff. There was no trial or judgment on the merits. Afterwards the court, on the motion of the defendant, dismissed the appeal. Erom this judgment the plaintiff has appealed. If the justice had given judgment on the merits, even though the rent was not due, and an appeal had been taken by the plaintiff from that judgment, the circuit court would have had jurisdiction of the cause. When a cause is appealed it becomes the duty of the circuit court to proceed with it do novo without regard to any error in the proceeding in the justice’s court. R. S. 1889, sec. 6339; Musgrove v. Mott, 90 Mo. 107; Boulware v. Railway, 79 Mo. 494. But the difficulty here is, that not only was the rent not due at the time of the trial before the justice on the issue in abatement, but no trial was had before him or judgment rendered on the merits. It has been several times decided by the St. Louis Court of Appeals that under the provisions of the act of February 25, 1891, Session Acts 1891, page 45, a judgment on the merits is a condition precedent to an appeal. Newman v. York, 74 Mo. App. 292; Crawford v. Armstrong, 58 Mo. App. 214; Laun v. Pfister, 69 Mo. App. 629; Milling Co. v. Ramey, 57 Mo. App. 33. The judgment on the issue in abatement is no more than an interlocutory judgment. It is not a final judgment within [203] the meaning of the Act of 1891, to which we have already referred. Duncan v. Forgey, 25 Mo. App. 310, and it is therefore not an appealable judgment. The judgment rendered in the circuit court on the issue in abatement is not res adjudícala as to the merits. Garret v. Greenwell, 92 Mo. 120. Although such judgment was rendered at a term of the the circuit court preceding that at which the motion to dismiss was filed and sustained, this did not bar the action taken by the court thereon. The action was still pending in the justice’s court. The appeal conferred no jurisdiction on the circuit court to try either branch of the case. We see no reason why the action of the court in giving judgment on the issue in abatement was not coram non judice. The justice acquired a rightful jurisdiction of the whole case and could not deprive himself of that jurisdiction by granting an appeal from his judgment on the issue in abatement. The appeal could not be effectual to remove the cause into the circuit court until judgment on the merits. The appeal was unauthorized by the statute and could not have the effect to remove the cause, or either branch thereof into the circuit court. It was properly determined. The judgment is affirmed. All concur.