Williams v. Bower

Richardson, Judge, delivered the opinion of the court. The plaintiff commenced two suits on the 23 d of May, 1857, before a justice of the peace of St. Louis county, which were afterwards consolidated. The writs were made returnable the first day of June, and on the return day, the defendant failing to appear, judgment by default was rendered. In due time the defendant appeared before the justice and moved to set aside the default, but the motion was overruled and the case was then taken by appeal to the law commissioner’s' court. In that court the defendant moved to dismiss the suit because the writs were defective, but the motion was denied and another default taken, on which final judgment was rendered, which the court also refused on a proper motion to set aside. By the local act of 1847 to regulate the practice in justices’ courts in St. Louis county, (Sess. Acts, 1847, p. 87,) a summons issued by a justice is made returnable to some day not more than sixty nor less than fifteen days after the date thereof, and the return day is made the trial day of the cause. This act was continued in force at the last revising session. (R. C. 1855, p. 1027, § 23.) The general law regulating justices’ courts requires every justice of the peace to appoint a day in every two months for the return of all summons issued by him, and every summons issued is made returnable on such day. Justices of the peace have no original jurisdiction, but derive their authority from the statute, and, in this county at least, where in the matter of issuing summons and the return thereof they act under a special law, they ought to respect it. If they have the right to abridge the time from fifteen to nine days, no reason is perceived why they may not reduce it to one day or to an hour, and parties who become the victims of judgments rendered on such process could obtain no [603] redress by appeal if the appearance simply to a motion to dismiss the proceeding is deemed sufficient to cure all defects in the summons. It was decided in this court in Sanders v. Rains, 10 Mo. 770, in an action of ejectment, that a summons issued by a justice of the peace made returnable in a less time than the law permits is void. There is a conservatism in all courts to uphold the validity of judicial proceedings when called collaterally into question, and to sustain titles acquired under them, and the reasons that influenced that decision operate with greater force to sustain the objection taken to the summons in this case at a proper time and in a direct proceeding. The marked difference between courts of original and limited jurisdiction is sufficient to show without discussion that the cases to which we have been referred by the plaintiff’s counsel are not in point to the only question in this case. The summons was illegal and the court erred in overruling the motion to dismiss, for which reason the judgment will be reversed and the suit dismissed; the other judges concur.