Groo v. Sanderson , 208 Mo. App. 623 ( 1921 )

Judgment was rendered for the defendant by the trial court in a suit which was brought on a judgment purporting to have been rendered by the City Court of Salt Lake, Salt Lake County, Utah. When the cause came on for trial in the circuit court of Jasper county, the plaintiff announced ready for trial, whereupon the defendant asked leave to amend an answer which had been filed and which denied that a judgment had been entered in said city court, denied that the defendant had appeared, and alleged that the judgment was invalid. It further alleged that the pretended judgment was entered without summons or notice to the defendant and that said city court never had jurisdiction of the defendant. The amended answer which was permitted to be filed simply added the following clause: "Defendant further answering alleged that the city court of Salt Lake City is a court of limited jurisdiction similar to that of a justice of the peace."

The record shows that upon the filing of the amended answer the plaintiff demanded a jury for the trial but immediately thereafter asked the court for time to read the amended answer and after doing so then orally sought a continuance on the ground of surprise, charging that the amendment was a ground therefor. At this point the defendant's attorney admitted that the Salt Lake City Court had jurisdiction to try cases to the amount of $500, it being more than the amount involved in this case, whereupon the trial court denied the oral request for a continuance. When this ruling was made the plaintiff's attorney filed an application for a change of venue, which was denied by the court. Immediately thereafter the plaintiff filed another application for a change of venue, which was also denied.

The appellant then went to trial and introduced in evidence a duly authenticated transcript of the judgment roll of the City Court of Salt Lake City in the case entitled Scott Groo v. W.E. Sanderson. In this connection, it appears from the record introduced that the summons in that case was served on the defendant in a county other than that in which Salt Lake City is located; that such summons was served on the defendant on November 25, 1914, and that a default was entered of record in June, 1917; that a few days after that, and in the same month, a judgment by default was entered by the clerk of said city court and that is the judgment upon which this suit is based. That judgment on its face shows that it was not rendered by any official occupying the position of a court or judge but was entered by the clerk of the city court. It was shown by the appellant that said city court was a court of record.

From the judgment of the trial court in this cause, directing a verdict for the defendant, the appellant brings his appeal here alleging three errors; first, that the trial court erred in not granting a continuance on the ground of surprise; second, that the trial court erred in refusing to grant a change of venue; and third, that the court erred in directing a verdict for the defendant after the introduction of the judgment roll and judgment which we have heretofore briefly described.

Taking up appellant's three assignments in their order, we must hold that no error was committed by the court in overruling the oral motion for a continuance, and this for the reason that the amendment to the original answer raised no new issue in the case. The same defense that was made might have been made under the original answer. The plaintiff must be held to a knowledge of what he would be required to prove to make his case. One essential fact being that this special court had jurisdiction to try this cause in Utah and render the judgment rendered, and the amendment charging that that court had no such jurisdiction could not be a valid ground for surprise that would entitle him to a continuance. As to the second assignment, we may state that the first application for change of venue was properly overruled because it did not comply with secs. 1357, 1360, Revised Statutes 1919. When the court overruled the first application for change of venue the plaintiff, appellant, excepted to the ruling and then filed a second application for change of venue. The court had already ruled upon the application for change of venue when the first one was filed, and no request was made to amend the same to comply with the statutes; besides, the second application certainly came too late after the plaintiff had before that announced ready for trial and then after the filing of the amended answer demanded a jury, the jury being summoned at the time the applications for a change of venue were presented to the court. [See Junior v. Missouri Electric Light Power Co., 127 Mo. 79, 81, 29 S.W. 988; Perry's Admr. v. Roberts, 17 Mo. 36, 40; Planters' Bank v. Phillips, 186 S.W. 752; State v. Davis, 203 Mo. 616, 102 S.W. 528.]

Now, as to the point made by appellant going to the merits of the case, this may be disposed of on the following grounds: the appellant fails to show any statutory authority in the city court of Salt Lake City, Utah, to render the judgment sued on, such judgment showing on its face that it was rendered by a clerk on the court, a practice unknown to the courts of general jurisdiction at common law, and unknown to the practice in Missouri. The case of Schroeder v. Edwards, 267 Mo. 459, l.c. 478, 184 S.W. 108, is clearly decisive of this point, and is a decision clearly upholding the judgment of the trial court. [See, also, Trimble Bros. v. Stamper, 179 Mo. App. 300, 166 S.W. 820; Hofheimer v. Losen, 24 Mo. App. 652.]

We being of the opinion that respondent is entitled to have this judgment affirmed on the assignments of error made by the appellant, and which have been disposed of in this opinion, will make it unnecessary for us to consider some eight highly technical points of practice raised by the respondent concerning the procedure involved in this appeal. The judgment is affirmed.Cox, P.J., and Bradley, J., concur.