Asbury v. Odell

• Decision Date: 31 October 1884
• Citation: 83 Mo. 264
• Parties: ASBURY et al., Appellants, v. ODELL.
• Court: Missouri Supreme Court

83 Mo. 264

ASBURY et al., Appellants,

v.ODELL.

Supreme Court of Missouri.

October Term, 1884.

Appeal from Jackson Circuit Court.--HON. TURNER A. GILL, Judge.

AFFIRMED.

Peak, Yeager & Ball for appellants.

The personal judgment rendered against Mary J. Odell and her husband, David C. Odell, was an absolute nullity and constituted no defence to appellant's cause of action against David C. Odell. A personal judgment cannot be rendered in this state against a married woman by a justice of the peace. A judgment against several defendants is an entirety and is good as to all or bad as to all. If it is void as to part it is void as to all. Freeman on Judgments, sec. 136; Ins. Co. v. Clover, 36 Mo. 392; Frazer v. Williams, 24 Ohio St. 625. A judgment against several parties, one of whom is a married woman, is void. Decker v. Lidwell, 3 Mo. App. 586; Swayne v. Lyon, 67 Pa. St. 439. The judgment rendered by Justice Bacon being void, there was no merger of the cause of action in the judgment. Richardson v. Aiken, 84 Ill. 221. In order that a judgment may operate as a bar or estoppel it must be a valid judgment. Bigelow on Estoppel, 21.

Wash Adams for respondent.

(1) This judgment against husband and wife is good against the husband in a collateral proceeding, because the justice who rendered it had jurisdiction. Where a court has acquired jurisdiction of the person and the subject matter it cannot render a void judgment. At most it could only be irregular, erroneous and voidable. Gray v. Bowles, 74 Mo. 423. (2) “The common law in all actions of contract inexorably required the plaintiff to prove his contract against as many persons as he alleged it. He must recover against all or against none.” The reason for this rule was removed by our statute. R. S., § 3541. (3) A judgment absolutely void as to one defendant for want of service of process is valid as to the others when attacked in a collateral proceeding. See Lenox et al. v. Clark, 52 Mo. 115; Hardin v. McCause, 53 Mo. 255; Holt Co. v. Harmon et al., 59 Mo. 166; Bailey v. McGinness, 57 Mo. 362; Carlin v. Cavender, 56 Mo. 286. (4) The same rule is established with respect to judgments at law against husband and wife, and it is held that a judgment against husband and wife, though void as to her, is good against him when attacked in a collateral proceeding. See Warneke v. Wood, 58 Mo. 353; Watkins v. Abraham, 24 N. Y. 72; Dorrance v. Scott, 3 Wharton (Pa.) 314; Higgins v. Peltzer, 49 Mo. 157; Weil v. Simmons, 66 Mo. 617. (5) The rules above referred to respecting the immunity of irregular and erroneous judgments from collateral attack apply with equal force to justice's judgments as to judgments of courts of record. See Jeffries v. Wright, 51 Mo. 215; Brackett v. Brackett, 53 Mo. 265; Bernal v. Lynch, 36 Cal. 135; Bell v. Raymond, 18 Conn. 100. It is elementary law that the judgment (if valid) always merges the cause of action sued on. See Cooksey v. K. C., St. J. & C. B. R. R. Co., 74 Mo. 477; Downing v. Still, 43 Mo. 318; Barnett v. Juday, 38 Ind. 86; Mitchell v. Hawley, 4 Denio 416. The case of Smith v. Ross, 7 Mo. 463, practically disposes of the question here involved.

MARTIN C.

This is an action against the defendant as maker of a promissory note, and was commenced before a justice of the peace. On appeal to the circuit court, judgment was rendered in favor of defendant, from which the plaintiffs appeal. The note is dated October 14, 1876, and purports to have been executed by David C. Odell and Mary J. Odell, who therein promise, for value received, to pay to Susan R. Asbury, on or before October 1, 1877, the sum of $85. Various credits appear to have been received towards payment.

The defence consists of a plea of former recovery. The plea was supported in the evidence by a transcript of a record of a suit and judgment before a justice of the peace, in favor of the plaintiffs herein, and against the defendants, David C. Odell and Mary J. Odell, on the same note sued on in this case. It is admitted that Mary J. Odell is the wife of David C. and was such at the execution of the note. On the evidence the court very properly declared that the plaintiffs could not recover.

It is insisted by plaintiffs that the judgment against said Mary J. is void on account of her coverture. It is then argued that the judgment as an entirety is necessarily void, also, as to David C., the defendant herein. Conceding for purposes of the argument, that the judgment is void as to one of the defendants therein, the position that it must be treated in a collateral proceeding as void as to the other defendant, cannot be maintained in this state. It has been frequently decided in this court that a joint judgment, void as to one defendant for want of service of process, is valid as to the other, when assailed in a collateral proceeding. Lenox v. Clarke, 52 Mo. 115; Hardin v. McCause, 53 Mo. 255; Carlin v. Cavender, 56 Mo. 286; Bailey v. McGinness, 57 Mo. 362; Holt Co. v. Harmon, 59 Mo. 166. The same rule has been applied to judgments which erroneously included the wife with the husband. Although void as to her, they have been invariably sustained as to him, except when attacked in a...