Snitjer v. Downing

Philips, C. Respondent sued appellant in ejectment to recover a lot or parcel of land near Main street, in the town of Memphis, Scotland county, as it appears from the petition and the judgment. Tlie cause was tried in the circuit court of Schuyler county, and judgment therein was rendered in favor of plaintiff, and the defendant has brought the case here on appeal. Iiow the circuit court of Schuyler county acquired jurisdiction over the subject matter of litigation, to-wit, the right of possession and title to land situate in Scotland county, does not appear from the record. The clerk in certifying the transcript, in what he is pleased to designate the “ Preamble,” recites : “ Be it remembered that heretofore, to-wit, March 17th, 1879, a petition was filed in the above entitled cause in the office of the clerk of the circuit court of Scotland county, Missouri.” But no transcript or record entry legally attesting that fact is given, but merely the naked recital of the clerk of the Scotland county circuit court. If the petition was filed in Scotland county, where it alone could have been properly filed, the only mode by which the cause .could have been transferred to Schuyler county, so as to give the latter court jurisdiction, was by change of venue ordered by the Scotland circuit court. Henderson v. Henderson, 55 Mo. 544. This case is on all-fours with that of Bray v. Marshall, 66 Mo. 122, the principle of which is affirmed in Fields v. Maloney, 78 Mo. 172. As the defect of want of jurisdiction is apparent of record, the judgment of the circuit court is reversed and the cause remanded to the circuit court of Schuyler county to be disposed of according to law. Ewing, C., concurs; Martin, C., and Sherwood, J., absent.