Baskowitz v. Guthrie

BLAND, P. J. 1. .For the reason that the notary omitted to designate in writing on his jurat to the application for change of venue the date of the expiration of his commission, it is contended by appellant that there was no evidence that the application for change of venue was sworn to and that the justice correctly denied the application. Section 8835, Revised Statutes 1899, reads as follows : ‘ ‘ Every notary public shall provide a notarial seal, on which shall be inscribed his name, the words ‘notary public, ’ the name of the county or city, if appointed for such city, in which he resides and has his office, and the name of the State; shall designate in writing, in any certificate signed by him, the date of the expiration of his commission. No notary public shall change his-seal during the term for which he is appointed, and he-shall authenticate therewith all his official acts, and the record and copies, certified by the proper custodian thereof, shall be received in evidence. ’ ’ This statute makes the official signature and seal of a notary the evidence of his official acts without reference to the designation in writing of the time of the expiration of his commission. In K. C. & S. E. Ry. Co. v. K. C. & S. W. Ry. Co., 129 Mo. 62, it was held that the omission of a notary to designate the time of the expiration of his commission did not invalidate his certificate to the acknowledgment of a deed. In Windmill Co. v. Baker, 49 Kas. 434, under a statute like ours, the Supreme Court of that State held: “The fact that a notary public, before whom a claim of lien is verified, fails to add after his official signature [309] the date of expiration of his commission, does not render snch lien void.” The court, at page 440, said: “The statute requiring.such addition on part of the notary does not attempt to avoid the affidavit taken by the notary on account of such omission. ’ ’ Neither does our statute attempt to avoid the certificate of a notary for his omission to designate the date of the expiration of his commission, and we hold that the affidavit to the application for change of venue was sufficiently authenticated. 2. The application for the change of venue of the cause was in strict compliance with the statute (sec. 3972, R. S. 1899). The next succeeding section (3973) made it the imperative duty of the justice to award a change of venue to a justice of some district where the inhabitants were not so prejudiced against the defendant that he could not have a fair trial therein; and when the application for the change of venue was filed before the justice he had no further jurisdiction in the case except to grant the change of venue (sec. 3973, supra), hence, his judgment was an absolute nullity. Jones v. Pharis, 59 Mo. App. 254. 3. The affidavit for the appeal was from the judgment, from the ruling of the justice on defendant’s application for a change of venue, etc. After the transcript had been filed in the circuit court and the cause docketed there, the defendant appeared and consented to several continuances of the cause. Plaintiff contends that by his appeal from the judgment of the justice and by his general appearance to the cause in the circuit court after the appeal had been granted, he thereby conferred on the circuit court jurisdiction to hear and determine the case. There might possibly be some force in this contention if the .cause was one of the class over which the circuit court had original jurisdiction, but the amount sued for is below the original jurisdiction of the circuit court, hence, that court could not obtain jurisdiction in any other manner than through [310] the justice by the appeal. Its jurisdiction of the subject-matter was derivative, therefore, if the court, through which it was attempted by appeal to confer jurisdiction had no jurisdiction, none conld he conferred on the circuit court. Planing Mill Co. v. Short, 58 Mo. App. 320; Ins. Co. v. Foster, 56 Mo. App. 197; Reinhardt v. Kempf, 72 Mo. App. 1. c. 650. 4. It is competent for a party to confer jurisdiction on a court of his person, but he can neither by consent nor conduct confer on a court jurisdiction of the subject-matter; the law alone coiifers.this jurisdiction. Parker v. Zeisler, 139 Mo. 298; Johnson v. Detrick, 152 Mo. 243. Under its general power of supervision over inferior courts it was competent for the circuit court to vacate the justice’s judgment and send the cause back to the justice with directions to grant the change of venue. The judgment is affirmed. All concur.