
    W. R. McQuoid et al., Respondents, v. C. E. Lamb, Appellant.
    St. Louis Court of Appeals,
    October 27, 1885.
    1. Forcible Entry — Justices—Jurisdiction.—Tlie jurisdiction of a justice of the peace must affirmatively appear in an action of forcible entry and detainer.
    2. Jurisdiction — Amendment—Certiorari.—On removal to the circuit court by certiorari, jurisdiction can not be conferred by amendment and the appearance of the parties where the justice’s jurisdiction does not appear.
    S. -Presumption. — Jurisdiction of a justice will not be presumed on appeal or certiorari where the transcript fails to show jurisdictional facts.
    
      Appeal from the Knox County Circuit Court, Ben. E. Turner, Judge.
    
      Reversed, and dismissed.
    
    L. F. Cottey and O. D. Jones, for the appellant:
    The cause should have been dismissed. No cause of action is stated in amended complaint against the defendant. It is not stated the offence was in the absence of the husband or any other fact, to overcome the presumption that she did it, if at all, under the influence and direction of her husband. Dailey v. Houston, 58 Mo. 361. It is clearly error to admit the oral agreement of defendant, made October 25, 1883. She was then a married woman. If signed and executed in the most solemn form without her husband it would not sustain any action. Long v. QoclcereTl, 55 Mo. 93; Huff v. Price, 50 Mo. 228; Shroyer v. HicJcell, 55 Mo. 264. The contracts of the parties on this subject were put in writing. On what principal is this side or outside oral agreement, made at same time, admitted ? Chambers v. Board, 60 Mo. 370, 371; Henning v. W. 8. Ins. Co., 47 Mo. 425. This action is one of possession, not title, or even the right of possession, or title, or any other mere equity. Clampitt v. Kelley, 62 Mo. 571. The court, erred in refusing instructions asked by defendant, if the agreements, written and oral made by defendant, a married woman, were void in law when made, as is maintained by all the authorities. Shroyer v. NiclceTl, supra; Whiteley v. Stewart, 63 Mo. 360; Wolf v. Walter, 56 Mo. 292; Davis v. Smith, 75 Mo. 219 ; Alexander v. Lydiclv, 80 Mo. 341. Plaintiffs must show they “were in the actual, as contradistinguished from the constructive, possession of the premises at the time defendant entered.” Armstrong v. Hendriclc, 67 Mo. 542. As where plaintiff had entered and plowed and left his mark. DeGraw v. Prior, 60 Mo. 56. But to enter and plow only a few furrows is not sufficient. Edwards v. Cary, 60 Mo. 572. Nor to cut timber alone. Powell v. Davis, 54 Mo. 315.
    
      McQuoid & Clancy, for the respondents:
    Respondents entered into the peaceable possession of said premises in good faith, with the intention of taking permanent possession of the same. They nailed np the doors and fastened the windows of the house and put up the fences. The appellant knew that respondents had the possession and the right of possession, and she further knew that she was a trespasser, in going back on said premises. Armstrong v. Hendrick, 67 Mo. 542; Kingman v. Abington, 56 Mo. 46; Bradley v. West, 65 Mo. 59; Edwards v. Gary, 60 Mo. 572; McCartney, Ad/rrir, v. Alder son, 45 Mo. 35 ; May v. Luekett, 48 Mo. 472; Powell v.- Davis, 54 Mo. 315 ; DeGraw v. Prior, 68 Mo. 158; Bartlett v. Draper, 23 Mo. 407.
   Rombauer, J.,

delivered the opinion of the court.

In an action of forcible entry and detainer the circuit court is not a court of original, but of appellate, jurisdiction. Under our statute, exclusive original jurisdiction vests in justices of the peace. It results from this, that no presumptions can be indulged by this court, in reviewing a judgment rendered by the circuit court, in such action, either in favor of the jurisdiction of the justice, or in favor of the jurisdiction of the circuit court. It is incumbent upon the party who claims under such judgment, affirmatively to show that the justice had jurisdiction in the premises originally, and that the circuit court subsequently acquired jurisdiction by certiorari, or appeal.

It appears in this case that an action of forcible entry was instituted by the plaintiffs, before a justice of the peace in Knox County, against Christiana E. Lamb, and others. The statement filed by them with the justice is not preserved in the record, and it does not appear whether such statement was in substantial conformity with the provisions of section 2423, Revised Statutes, a conformity with which is an essential prerequisite to the justice’s jurisdiction. Fletcher v. Keyte, 66 Mo. 285.

The cause was subsequently removed to the circuit court by certiorari. The writ of certiorari performs no other office than to remove the cause pending before the justice to the circuit court. If the justice had no jurisdiction in the cause, owing to the failure of filing a sufficient complaint before him, the circuit court can acquire none by removal.

In the circuit court the plaintiffs filed an amended complaint. The defendant, Christiana, moved to dismiss, but the court overruled her objection, and, upon trial, there was a verdict and a judgment against her, from which she appeals.

It is cleár upon the record before us that her motion to dismiss should have been sustained, as the justice’s jurisdiction does not appear. Even if her motion to dismiss did not assign proper grounds, the objection was not waived by subsequent appearance and joining issue. If the circuit court had no jurisdiction of the cause, the consent of the parties, even if such consent could be implied, could confer no jurisdiction upon it. Robinson v. Walker, 45 Mo. 120.

For the reasons above stated, the judgment must be reversed and the cause dismissed. It is so ordered.

All the judges concur.  