Babb v. Bruere

• Decision Date: 07 December 1886
• Citation: 23 Mo.App. 604
• Parties: MARTHA E. BABB ET AL., Respondents, v. VICTOR BRUERE, Appellant.
• Court: Missouri Court of Appeals

23 Mo.App. 604

MARTHA E. BABB ET AL., Respondents,

v.VICTOR BRUERE, Appellant.

St. Louis Court of Appeals, Missouri.

Dec. 7, 1886.

APPEAL from the St. Louis Circuit Court, DANIEL DILLON, Judge.

Reversed and remanded with directions.

LOUIS A. STEBER, for the appellant: The act of 1875, now section 3296, of the Revised Statutes, 1879, abrogated the common law liability of the husband for the ante-nuptial debts of the wife. Howarth v. Warmser, 58 Ill. 48; Martin v. Robson, 65 Ill. 129; S. C. 16 Am. Rep. 578; Haight v. McVeagh, 69 Ill. 627; Biery v. Ziegler, 93 Pa. St. 368; Norris v. Corkill, 32 Kansas 409. A personal judgment against a married woman, in such a case, would not be void, it being an exception to the general rule. Walker v. Deaver, 79 Mo. 681; Gruenv. Bamberger, 11 Mo. App. 261. The act of 1881, page 161, exempts the husband and the husband's property from the payment of the debts of the wife contracted before marriage. The method of procedure adopted in this case is correct. Bauer v. Bauer, 40 Mo. 61; Bauer v. Miller, 16 Mo. App. 257; Bain v. Chrisman, 27 Mo. 293; Ex parte James & Ray, 59 Mo. 280, 284.

M. KINEALY and JAS. R. KINEALY, for the respondents.

THOMPSON, J., delivered the opinion of the court.

This was a motion to recall and set aside an execution issued out of the office of the clerk of the circuit court upon a transcript of a judgment of a justice of the peace therein filed. The ground of the motion is, that the transcript of the justice shows on its face that the judgment of the justice is void for want of jurisdiction. The ground on which this contention is based is that the statement, filed by the plaintiff in the suit before the justice of the peace, which the defendant was permitted to put in evidence before the circuit court, shows that the action was prosecuted against the defendant, without the joinder of his wife, for an ante-nuptial debt of the wife. It is contended that, upon such a statement a justice of the peace has no jurisdiction, because (1) the husband is not liable in this state for an ante-nuptial debt of his wife; and (2) if he is so liable, he can only be made so in an action in which the wife is joined with him as defendant. We do not consider it necessary, for the purposes of this case, to express any opinion upon the first of these propositions. The second we concede, so far as it was ruled by this court, in Gruen v. Bamberger (11 Mo. App. 261), where it was held that, in a suit against a husband for an antenuptial debt of the wife, if the wife is not joined as a party defendant, the judgment will be arrested on motion or reversed on error. We shall then assume, for the purposes of this argument, but without conceding the first proposition, (1) that a husband is no longer liable in this state for an ante-nuptial debt of his wife, unless, for a consideration, he has agreed to become so; and (2) that in an action against a husband for an antenuptial debt of his wife, unless the wife is joined as a party defendant, the judgment will be arrested on motion or reversed on error.

I. But from these premises the conclusion by no means follows that the judgment of the justice is void for want of jurisdiction. The whole argument in support of the contention that the judgment is so void proceeds upon a misconception of the distinction between a want of jurisdiction and an erroneous exercise of jurisdiction. “Jurisdiction,” says Mr. Justice Baldwin, “is the power to hear and determine the subject matter in controversy between the parties to a suit; to adjudicate or exercise any judicial power over them. The question is whether, on the case before the court, their action is judicial or extra-judicial, with or without the authority of law to render a judgment or decree upon the rights of the litigant parties. If the law confers the power to render a judgment or decree, then the court has jurisdiction; what shall be adjudged or decreed between the parties, and with which is the right of the case, is judicial action by hearing and determining it.” State of Rhode Island v. State of Massachusetts, 12 Pet. (U. S.) 718. See, also, Grignon's Lessee v. Astor, 2 How. (U. S.) 338. “Jurisdiction,” said the late Judge Rorer, “is defined to be the power to hear and determine the particular case involved.” Rorer on Judicial Sales, sect. 59. This definition was quoted with approval by our supreme court in Gray v. Bowles, 74 Mo. 419, 423. In the case just cited the doctrine was thus stated by Norton, J.: “When there is jurisdiction of the person and subject matter, the decision of all other questions arising in the case is but an exercise of that jurisdiction, and an erroneous decision of any of these other questions could not impair the validity and binding force of the judgment when brought in collaterally.” Id. 424. Upon the same question the supreme court of California said: “It is not the particular decision given which makes up jurisdiction, but it is the authority to decide the question at all. Otherwise all distinction between the erroneous exercise of jurisdiction on the one hand, and the total want of it on the other must be obliterated.” Chase v. Christianson, 41 Cal. 253. This statement was likewise quoted with approval by our supreme court in Gray v. Bowles, supra. The following is the expression of the same doctrine by the supreme court of Ohio: “The court once by its process having acquired the power to adjudicate upon a person or thing, it has what is called jurisdiction. * * * The distinction is between a lack of power or want of jurisdiction in the court and a wrongful or defective execution of the power. In the first instance all acts of a court not having jurisdiction or power are void; in the latter, only voidable. A court may then act, first, without power or jurisdiction; second, having power or jurisdiction, may exercise it wrongfully; or, third, irregularly. In the first instance the act or judgment is void, and is as though it had not been done. The second is wrong and must be reversed upon error. The third is irregular and must be corrected on error.” Paine v. Moreland, 15 Ohio, 435. This expression of doctrine was quoted with approval by our supreme court in Freeman v. Thompson (53 Mo. 183), and also in Gray v. Bowles, supra. The following statement of the same doctrine is from an approved text writer: “Before this power can be affirmed to exist, it must be made to appear that the law has given the tribunal capacity to entertain the complaint against the person or thing sought to be charged or affected; that such complaint has been preferred, and that such person or thing has been properly brought before the court or tribunal to answer the charge therein contained. There can be no doubt that the filing of a petition or complaint, such as not to be deemed sufficient on demurrer, may confer jurisdiction. The power to decide upon the sufficiency of a cause of action as presented in the pleadings, like the power to decide any other legal proposition, though erroneously applied, is binding until corrected by some superior authority.” Freeman on Judg., sect. 118. Many expressions and applications of the same doctrine will be found in decisions of our own and other courts. Ellis v. Jones, 51 Mo. 180, 186; Jeffries v. Wright, 51 Mo. 215; Hardin v. Lee, 51 Mo. 241; Yeoman v. Younger, 83 Mo. 424; Bauer v. Miller, 16 Mo. App. 252, 257; Grignon's Lessee v. Astor, 2 How. (U. S.) 338; Ex parte Watkins, 3 Pet. (U. S.) 193; Ex parte Parks, 93 U. S. 18; The People v. Sturtevant, 9 N. Y. 263, 267; Ex parte Winston, 9 Nevada, 71; Re Callicot, 8 Blatch. (U. S.) 89; People v. Shea, 3 Park Cr. (N. Y.) 562.

II. This principal applies to the judgments of courts of limited or special jurisdiction, as well as to the judgments of superior courts of record. This is shown by the Missouri cases above cited, all of which related to the judgments of inferior tribunals.

III. To this principle an exception, grounded upon one old decision ( Bushnell's case, Vaughn, 135; S. C., How. St. Tr. 999; T. Jones, 13), and several modern ones ( The People ex rel. v. Liscomb, 60 N. Y. 599; The People v. Kelly, 24 N. Y. 74, 77; Ex parte Siebold, 100 U. S. 371, 376; Ex parte Clark, 100 U. S. 399; Ex parte Page, 49 Mo. 291; Ex parte Jilz, 64 Mo. 205), has been admitted. This exception is that, where in criminal prosecutions the prisoner has been sentenced to a punishment not allowed by law, or in excess of that allowed by law, for the particular offence, the judgment is void in the sense that the prisoner may be released on habeas corpus; though now, by a recent statute in this state (1 Rev. Stat., sect. 1996), the office of the writ of habeas corpus has been so far changed into a writ of error, as to require the court or officer hearing the habeas corpus in such a case to re-sentence the prisoner in conformity with the law. Whether this principle extends so far as to sanction the collateral attack of judgments in civil cases, on the ground that they are in excess of the jurisdiction of the tribunal, we need not now consider. We may concede, for the purpose of the argument, that it does. We may concede, for instance, that if, in an action of this kind against a husband and wife, the justice had proceeded to render a special judgment subjecting the real estate of the wife, so much of his judgment would be void, because it would be an attempt to grant equitable relief, which a justice of the peace has no jurisdiction to do. We may also concede...