Johnson v. Fischer

Missouri Court of Appeals

Johnson v. Fischer

56 Mo. App. 552, 1894 Mo. App. LEXIS 112

CourtMissouri Court of Appeals

DecidedFebruary 19, 1894

StatusPublished

Cited by11 cases

This text of 56 Mo. App. 552 (Johnson v. Fischer) is published on Counsel Stack Legal Research, covering Missouri Court of Appeals primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Johnson v. Fischer, 56 Mo. App. 552, 1894 Mo. App. LEXIS 112 (Mo. Ct. App. 1894).

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Opinion

Ellison, J.

— This is an action of unlawful, detainer and was begun before a justice of the peace in Saline county, Missouri. The complaint does not-show (and it does.not appear that the record anywhere showed) the premises detained were in Saline county, or in this state. Without this appearing, the justice-had no jurisdiction, since by statute (Revised Statutes, 1889, sec. 5091), a justice has jurisdiction in such actions only where the land lies in the county for which he is justice. Tegler v. Mitchell, 46 Mo. App. 349.

The complaint does locate the land as being “im section 33, township 51, range 19,” and from this it is. contended we should take judicial notice that the land was within Saline county. This we cannot do, as there-is nothing in the description which >vould place the lands in this state. The description will as well fit. lands in other states. If there was something to locate the lands as being in this state and it appeared or was a fact, that the description could apply to no other-lands in this state, it might make a different case. We do not think that class of cases to which Long v. Waggoner (47 Mo. 178) belongs, concerning description in. conveyances between individuals, is applicable to the-question.

[556]*556II. Plaintiff asks that the cause be remanded that he may have an opportunity to supply this jurisdictional ■defect by amendment as provided by Revised Statutes, 1889, section 6317. It has been held by the supreme •court (Mitchell v. Railroad, 82 Mo. 106), that this ¡section authorized amendments which would supply a .jurisdictional omission. But this had reference to ordinary actions before justices of the peace. The statute itself shows that it could not, without much forcing, ■apply to an action of unlawful detainer. The statute of ■forcible entry and unlawful detainer makes no mention •of such amendments, by referring to the general procedure before justices of the peace or otherwise. It is a separate and independent scheme. Carter v. Tindall, 28 Mo. App. 316; Hastings v. Hennessey, 52 Mo. App. 172. Complete in detail, it prescribes the mode •and order of trial, the form of the proceeding, judgment •and execution, the duties of the justice and his authority ; even to the power of issuing subpoenas and com■pelling the attendance of witnesses.

We find ourselves, therefore, without authority to permit the amendment. The judgment will be reversed.

All concur.

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Ellison, J.

— This is an action of unlawful, detainer and was begun before a justice of the peace in Saline county, Missouri. The complaint does not-show (and it does.not appear that the record anywhere showed) the premises detained were in Saline county, or in this state. Without this appearing, the justice-had no jurisdiction, since by statute (Revised Statutes, 1889, sec. 5091), a justice has jurisdiction in such actions only where the land lies in the county for which he is justice. Tegler v. Mitchell, 46 Mo. App. 349.

The complaint does locate the land as being “im section 33, township 51, range 19,” and from this it is. contended we should take judicial notice that the land was within Saline county. This we cannot do, as there-is nothing in the description which >vould place the lands in this state. The description will as well fit. lands in other states. If there was something to locate the lands as being in this state and it appeared or was a fact, that the description could apply to no other-lands in this state, it might make a different case. We do not think that class of cases to which Long v. Waggoner (47 Mo. 178) belongs, concerning description in. conveyances between individuals, is applicable to the-question.

[556]*556II. Plaintiff asks that the cause be remanded that he may have an opportunity to supply this jurisdictional ■defect by amendment as provided by Revised Statutes, 1889, section 6317. It has been held by the supreme •court (Mitchell v. Railroad, 82 Mo. 106), that this ¡section authorized amendments which would supply a .jurisdictional omission. But this had reference to ordinary actions before justices of the peace. The statute itself shows that it could not, without much forcing, ■apply to an action of unlawful detainer. The statute of ■forcible entry and unlawful detainer makes no mention •of such amendments, by referring to the general procedure before justices of the peace or otherwise. It is a separate and independent scheme. Carter v. Tindall, 28 Mo. App. 316; Hastings v. Hennessey, 52 Mo. App. 172. Complete in detail, it prescribes the mode •and order of trial, the form of the proceeding, judgment •and execution, the duties of the justice and his authority ; even to the power of issuing subpoenas and com■pelling the attendance of witnesses.

We find ourselves, therefore, without authority to permit the amendment. The judgment will be reversed.

All concur.

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56 Mo. App. 552, 1894 Mo. App. LEXIS 112, Counsel Stack Legal Research, https://law.counselstack.com/opinion/johnson-v-fischer-moctapp-1894.

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