State ex rel. Fairbanks, Morse & Co. v. Ayers

.BROADDUS, P. J. On the twenty-third day of April, 1904, one George Withers began suit in Sedaiia township, Pettis county, before M. A. Ayers, justice of the peace, against the relator, Fairbanks, Morse & Co'., a corporation organized under the laws of the State of Illinois with a branch office in St. Louis, Missouri. The summons was served by the. constable of said township by reading the same to one, Charles Easton, agent of said corporation on the 14th day of June, 1904, in Sedaiia township. On June the 24th 1904, judgment was rendered in favor of the plaintiff for $191.50. On July the 2nd, 1904, during the session of the circuit court for the county, the relator applied for and was granted a writ of certiorari, which was served upon the respondent on the same day. In due time, respondent moved to quash the writ on the following grounds among others, 1 viz: That the same was improperly issued; and that the relator had an adequate remedy by appeal. The motion to quash was overruled and respondent appealed. It is insisted, and properly, that the writ of cer [92] tiorari is not a writ of right, and is only to be issued where there is no other adequate remedy. [State ex rel. v. Woodson, 161 Mo. 444; Ward v. Board, 135 Mo. 309.] The relator had a complete remedy by appeal. But it is contended by relator that had it appealed, it would thereby have waived the question of jurisdiction. It was held in Rice v. Railway, 30 Mo. App. 110, that “the taking of an appeal by a defendant from a judgment of a justice of the peace waives all errors or imperfections in the service of process, and is equivalent to a general appearance to the merits, in the circuit court.” And such was the holding in Fitzpatrick v. Railway, 34 Mo. App. 280; Witting v. Railroad, 28 Mo. App. 103. But in Trimble v. Elkin, 88 Mo. App. 229, this court held that an appeal from the judgment of a justice did not waive jurisdiction of the person. However, the St. Louis Court of Appeals in Meyer v. Ins. Co., 92 Mo. App. 392, held that it did. The latter case was certified to the Supreme Court because it was in conflict with the former one, and that court holds that when “the defendant made timely objection to the jurisdiction over it, both in the justice’s court and the circuit court,” that it did not waive the question of jurisdiction by appealing to the circuit court after judgment. [Meyer v. Insurance Co., 184 Mo. 481. See also Bente v. Remington Typewriter Co., 116 Mo. App. 77.] Cause is reversed with directions to the trial court to set aside its judgment overruling respondent’s motion to quash the writ, and to enter in lieu thereof a judgment sustaining the same. All concur.