Adams v. Stockton et al.

• Decision Date: 07 April 1941
• Docket Number: No. 19874.,19874.
• Citation: 151 S.W.2d 127
• Court: Missouri Court of Appeals
• Parties: JOHN W. ADAMS, APPELLANT, v. N.B. STOCKTON, ET AL., RESPONDENT.

151 S.W.2d 127

JOHN W. ADAMS, APPELLANT, v. N.B. STOCKTON, ET AL., RESPONDENT.

No. 19874.

Kansas City Court of Appeals, Missouri.

April 7, 1941.

Appeal from Circuit Court of Pettis County. — Hon. Dimmitt Hoffman, Judge.

REVERSED AND REMANDED.

H.K. Bente and Fred A. Benz for appellant.

(1) Defendants' (respondents') several, separate answers of general denials of plaintiff's allegations of petition, were waived and no defense may be founded thereupon. Price v. Mining Co., 83 Mo. App. 470; Adams v. Trigg, 37 Mo. 141; Bank & Stone v. Prickett, 93 Mo. App. 292. Since in being followed (a) by their (defendants') confessions and their mere conclusions which are equivalent to no averments. Levins v. Rovegno, 71 Calif. 273, 278; Piggott v. Denton, 46 S.W. (2d) 618; Lee v. Grocery Co., 55 S.W. (2d) 406; Stock Yards Co. v. Grain Co., 279 S.W. 771. (b) In trying to justify their several acts and to avoid responsibility therefor, which, under the provisions of Secs. 776 and 800, Mo. St. 1929, are inconsistent theories or pleas, since the truth of one defense necessarily disproves the other. Finley v. Williams et al., 29 S.W. (2d) 103; Bell v. Campbell, 123 Mo. 1; Cole v. MacDaniel, 33 Mo. 365. (c) And tender no issues herein at all and are equivalent to no answer, which constitutes default, which thus entitles plaintiff (appellant) to judgment as prayed, regardless of the extent of the evidence offered. Cowell v. Ind. Co., 326 Mo. 1103, 1112; James v. Chand. Co., 30 S.W. (2d) 118; Ambruster v. Ambruster, 31 S.W. (2d) 28; McKee v. Cottle, 6 Mo. App. 416, 417; Bank v. Int'l. Co., 217 Mo. App. 131. (2) Defendants (respondents) having defaulted of answer, as set out in point 1 hereof, plaintiff (appellant) was entitled to judgment as prayed and the giving of Instruction No. P-1 for the reasons set out in point 1, supra. (3) A special and preclusive statute takes precedence over a general statute. State v. Showers, 34 Kansas, 269, 272; Williamson v. Thom., 194 Mo. App. 173. (a) And our Landlord and Tenant Act (Secs. 2573 to 2628, Mo. Stat. 1929), is special and preclusive in its character. Haake v. Trust Co., 54 S.W. (2d) 459; Tooker v. Leake, 146 Mo. 419; Warden v. Ry. Co., 78 Mo. App. 664, 666. (b) The Landlord and Tenant Act remedy is statutory, special in its nature and the proceeding is summary, the object being to give an injured landlord a means of speedily obtaining restitution of his premises, which the general statute and common law did not then afford. Wolff v. Shinkle, 4 Mo. App. 197, 198; Horn v. Peteler, 16 Mo. App. 438. (c) Our Landlord and Tenant Act supersedes the common-law remedy by distress for rent. Welch v. Ashby et al., 88 Mo. App. 400, 404. (d) And those provisions necessarily preclude them from being done in any other manner. Keane v. Strodtmen, 323 Mo. 161; Henderson v. Koenig, 168 Mo. 356; Gruender v. Frank, 267 Mo. 713, 720; Pipe Line Co. v. Stewart, 35 S.W. (2d) 627; Schlafly v. Baumann, 108 S.W. (2d) 363. (4) Mrs. Randall's Affidavit of complaint states no cause of action and confers no jurisdiction. Paddock v. Somes, 102 Mo. 226, 235; Riggs v. Moise, 128 S.W. (2d) 632. (a) And is inadequate to support the judgment for rent and possession of the premises, since a judgment may not be broader than the issues made by the pleadings, regardless of the scope of the evidence. State v. Pearcy, 29 S.W. (2d) 83; Hecker v. Bleish, 319 Mo. 149, 175; Fielder v. Fielder, 6 S.W. (2d) 968. (5) Service of process is mode authorized by law is a prerequisite to jurisdiction, under the Landlord-Tenant Act which contains no provision for any service or execution by a sheriff or his deputy, as was done in this case. State ex rel. v. Wright, 88 S.W. (2d) 427; Haake v. Trust Co., 54 S.W. (2d) 459; Yowell v. Mace, 221 Mo. App. 85. (a) Which jurisdiction must appear on the face of the record. Warden v. Ry. Co., 78 Mo. App. 664, 666; Patchen v. Durrett, 116 Mo. App. 437, 440; State v. Meyers, 26 S.W. (2d) 816, and (b) That no intendments may be allowed in justice courts. State v. Hobbs, 218 Mo. App. 448, 456; Martindale v. Hall, 132 S.W. (2d) 1041, and (c) That a void service of any writ is equivalent to no service. Henman v. Westheimer, 110 Mo. App. 191, 197. (b) Defendants' Exhibits No. 1 to No. 5, inclusive, especially No. 1, Summons, were incompetent as evidence, being void on their faces, were erroneously admitted into evidence in this cause, for the reasons: (a) That any void instrument is inadmissible as evidence in any case. Burr v. Mathers, 51 Mo. App. 470. (b) And this instrument No. 1, (Summons), shows on its face, to be void, since it was issued under the Landlord-Tenant Act, Secs. 2573 to 2628, Mo. Stats. 1929, and that no constable or an appointee therefor, served this summons, as provided in Secs. 2183, 2193, 2197, 2607 and 2609, Mo. Statutes, 1929. Miehl v. Securities Co., 227 Mo. App. 786, and that (c) The Deputy Sheriff, Louis J. Meisner's return shows void because Deputy Sheriff Miesner, had no authority either to serve same or to make return thereupon, in his own name as such deputy. State ex rel. v. Fisher, 230 Mo. 325, 339; Atwood v. Reyburn, 5 Mo. 533, 534; Stuckert v. Thompson, 181 Mo. App. App. 518. (d) And it was therefore, erroneously admitted into evidence. Burr v. Mathers, 51 Mo. App. 470; State ex rel. v. Fisher, 230 Mo. 325, 339; Cooksey v. Ry. Co., 17 Mo. App. 132. (e) And the said deputy sheriff's return thereon is not amendable to permit said Miesner to show that he acted in some other capacity. Mitchell v. Shaw, 53 Mo. App. 652. (7) Defendants' Exhibit No. 2 was incompetent as evidence and was erroneously admitted into evidence for the reasons set out in Point 6, supra. (8) Defendants' Exhibit No. 5, was incompetent as evidence in this cause, his record showing that he had no jurisdiction therein, for the reasons set out in Points 1 to 7, inclusive supra. (9) A judgment is void and is entitled to no respect and may be impeached collaterally by anyone whose right it conflicts, where it affirmatively appears on the face of the record that the court rendering it did not have jurisdiction of the subject matter, or of the person of the defendant, and did not have authority to grant the particular relief it did grant therein. Sanders v. Savage, 129 S.W. (2d) 142; Corporation v. Box Co., 97 S.W. (2d) 862; Gray v. Clement, 286 Mo. 100. (a) And all acts under a void judgment, are also void. Cemeteries Co. v. Strother, 119 S.W. (2d) 762. (b) And an officer is bound to know the law and to take notice that he has no valid writ. Rousey v. Wood, 57 Mo. App. 650; Linck v. Troll, 84 Mo. App. 49, 55; State ex rel. Clement v. Rainey, 99 Mo. App. 218, 220. (c) Every unauthorized entry upon another's land is trespass. Kerby v. Pipe Line Co., 4 S.W. (2d) 857; Ry. Co. v. Reynolds, 89 Mo. 146; Bert v. Rhodes, 258 S.W. 40. (d) For which damage will be presumed. King v. St. Louis 250 Mo. 501, 513; State to use v. Rayburn, 22 Mo. App. 303, 305. (e) For which wrong all tort-feasors (respondents herein), who have done any part of such wrong, or even contributed their will thereto, are each liable to pay damages for the entire injury. State ex rel. Trimble et al., 302 Mo. 699; Lowery v. Kansas City, 337 Mo. 47; Kneezle v. Milling Co., 113 S.W. (2d) 817. (f) Including Justice Stockton who rendered the void judgment. Palzach v. Gerichten, 10 Mo. App. 424. (g) The intent of such tort-feasors therein, being immaterial; the act done fixes the liability. Dyer v. Tyrrell, 142 Mo. App. 471, 476. (h) The rule that a public official is not responsible for his official determination, however erroneous and however malicious the motive, is applicable only where he had jurisdiction. Ray v. Dodd, 132 Mo. App. 444, 448. (i) An agent's or a deputy's knowledge is equivalent to his principal's knowledge, and the knowledge of Deputy Sheriff Miesner imparted to him by the record herein was equivalent to the knowledge of the sheriff, Eaton, who had to take notice thereof and to know that Mrs. Ransdall's original complaint stated no cause of action, and that the summons to John Adams was not legally served upon him, since the deputy sheriff had no authority to serve same, and that the justice, Stockton, took and had no jurisdiction to render any judgment in that cause, and that the writ delivered to Sheriff Eaton was void, and he therein took and had no jurisdiction to execute it. Gestring v. Fisher, 46 Mo. App. 603; Carpet Co. v. Crawford, 127 Mo. 356; Point IX, b, supra; State to use v. Moore, 19 Mo. 369; Stephenson v. Porter, 45 Mo. 358, 360; State ex rel. v. Padberg, 340 Mo. 667; State ex rel. v. Edmundson, 71 Mo. App. 172, 178; Clark v. West, 126 S.W. (2d) 569. (j) For the reasons aforestated, it was error of the trial court in giving Instructions No. 7 and No. 8. (10) Since appellant's property and rights were unjustly invaded by respondents, as aforesaid, and thereby deprived of his blacksmith profits, public patronage and good will, self respect and loss of earning ability now and ever after, inconvenience and mental pain suffered, it was erroneous of the trial court in refusing to permit appellant to show same, at trial. Hyre et ux. v. Becker, 18 S.W. (2d) 137; Murphy v. Building Co., 90 Mo. App. 621; Patrick v. Ins. Co., 118 S.W. (2d) 116; McGinniss v. Ry. Co., 21 Mo. App. 390, 411; Ritchie et ux. v. Board, 297 S.W. 435; 17 C.J. 718 to 720, par. 55, note 25.

F.M. Brady and Edwin F. Brady for respondents.

(1) In an action for damages where it is alleged that the defendants entered into a conspiracy and agreement to injure the plaintiff by trespasses against him and his property, which was alleged to have been carried out and the plaintiff dispossessed and evicted from property which he was entitled to hold and he was thereby damaged and his property injured and damaged and that on account of the wrongful acts of defendants he suffered other named injuries and damages, and wherein large actual and punitive damages were...