St. Louis & S. F. Ry. Co. v. Lowder

• Decision Date: 23 March 1897
• Citation: 39 S.W. 799,138 Mo. 533
• Court: Missouri Supreme Court
• Parties: ST. LOUIS & S. F. RY. CO. v. LOWDER et al.

39 S.W. 799

138 Mo. 533

ST. LOUIS & S. F. RY. CO. v. LOWDER et al.

Supreme Court of Missouri, Division No. 2.

March 23, 1897.

ENJOINING EXECUTION — ADEQUATE REMEDY AT LAW.

The collection of an execution regular on its face, but issued on a judgment void for failure to serve defendant therein, will not be enjoined, the remedy at law being adequate.

Modified opinion. For original opinion, see 38 S. W. 550.

BURGESS, J.

This is a proceeding by bill in equity to restrain the collection of a judgment in favor of defendant Howell and against plaintiff, rendered by J. L. Bedford, a justice of the peace of Barry county, upon the ground that the judgment is void in that it was rendered without service of process on the plaintiff herein. The petition alleges that J. F. Bedford, a justice of the peace of Barry county, rendered judgment against the plaintiff in favor of W. A. Howell, defendant; that the judgment was rendered without the service of process on the plaintiff; that an execution had been issued on the judgment; and that the defendant Lowder, who is constable of the township where the judgment was rendered, had seized under said execution, and was proceeding to sell, a car, the property of the plaintiff. A temporary injunction was granted. At the return term of the summons issued in the cause, defendants interposed a general demurrer to the petition, alleging as ground therefor "that the petition does not state facts sufficient to constitute a cause of action." The demurrer was sustained, and, upon plaintiff's refusal to plead further, judgment was rendered for defendants, dismissing the petition. Then followed an assessment of damages on motion of defendants. From the judgment rendered, plaintiff appealed to the St. Louis court of appeals, where the judgment was affirmed. 39 Mo. App. 3. But the case was certified to the supreme court upon the ground that the decision is in conflict with prior decisions of the supreme court. The only question presented by this record is, will a court of equity enjoin the collection of an execution issued on a void judgment rendered by a justice of the peace? There is some conflict in the adjudications of the appellate courts of this state upon this question. It has, however, always been held that, where the court or justice of the peace has jurisdiction of the subject-matter, the ministerial officer is not bound to examine into the validity of the judgment, the proceedings, or the process. It is sufficient for his protection if the execution be regular upon its face, and the court from which it was issued had jurisdiction of the subject-matter. Miller v. Brown, 3 Mo. 128; Higdon v. Conway, 12 Mo. 295; Melcher v. Scruggs, 72 Mo. 406. But, "if the court had no jurisdiction over the subject-matter, the officer is supposed to know it, and an execution issued upon such judgment is no protection to him. It is his duty to refuse to serve it. But if the court has jurisdiction over the subject-matter, and has only failed to obtain jurisdiction of the person, an execution will protect the officer, provided the failure does not appear upon the process in his hands." Howard v. Clark, 43 Mo. 348. "Jurisdiction of the subject-matter is the power to adjudge concerning the general question involved, and is not dependent upon a state of facts which may appear in a particular case arising, or which is claimed to have arisen, under that general question. One court has jurisdiction in criminal cases; another, in civil cases. Each, in its sphere, has jurisdiction of the subject-matter. Yet the facts, the acts of the party proceeded against, may be the same in a civil case as in a criminal case. * * * We conclude that jurisdiction of the subject-matter is the power lawfully conferred to deal with the general subject involved in the action." Hunt v. Hunt, 72 N. Y. 217; State v. Smith, 104 Mo. 419, 16 S. W. 415; State v. Neville, 110 Mo. 345, 19 S. W. 491; Musick v. Railway Co., 114 Mo. 309, 21 S. W. 491. In the case at bar the...