Barnett v. Barnett
| Decision Date | 03 May 1921 |
| Parties | LIZZIE BARNETT, Respondent, v. GROVER BARNETT, Appellant |
| Court | Missouri Court of Appeals |
Appeal from McDonald Circuit Court.--Hon. C. L. Henson, Judge.
AFFIRMED.
Judgment affirmed.
D. S Mahew for appellant.
(1) All writs and processes issued out of the court of record shall run in the name of the State of Missouri and shall be tested by the clerk of the court from which the same shall be issued and sealed with the judicial seal of such court. R. S. 1919 sec. 1209; Const. of Missouri, sec. 38, art. 6; 1 McQuillins Missouri Practice, sec. 217; Smith Heddins & Co. v Hackley, 44 Mo.App. 614, 618. (2) A defective writ successfully assaulted by motion to quash, interposed in due season is the same as no process at all, the omission of the attestation of any writ is a serious omission and has been held to render the writ absolutely void. Smith, Heddings & Co. v. Hackley, 44 Mo.App. 619; Wade on Attachments, sec. 121. (3) Where the writ is not signed by the officer issuing it, it is void. Mathews v. Ausley, 31 Ala. 20; Wales v. Clerk, 43 Conn. 183; Wade on Attachment and Garnishment, secs. 118 & 1822; 40 Mo.App. 113. (4) Not only must process be served in the manner prescribed by law, but the process itself must be the mandate of an officer authorized by law to issue or require it to be issued. "The stream cannot rise higher than its source." Williams v. Monroe, 125 Mo. 585. (5) Although the record of the court of general jurisdiction recites that defendant has been duly served with process, it is competent to overthrow such recital by showing by other portions of the record of equal force and dignity that such recital of service is not true. Cloud v. Pierce City, 6 Mo. 357; Laney v. Garbee, 105 Mo. 355; Milner v. Shipley, 94 Mo. 106; Bell v. Brukmann, 123 Mo. 270; Freeman on Judgments (4 Ed.), sec. 125; Higgins v. Beckwith, 102 Mo. 456; Williams v. Monroe, 125 Mo. 584; State ex rel. v. Fisher, 230 Mo. 325. (6) A summons issued without the seal of the court is void. Choate v. Spencer, 20 L.R.A. 424; Stevens v. Franklin County, 81 U.S. (14th Wall.) 15; York v. Texas, 137 U.S. 15. (7) Failure of clerk to sign summons invalidates it. Shoeman v. Hurd, 20 Mont. 558; 52 P. 558; In re Wall, 92 P. 785; Slayton v. Newcomer, 6 Ark. 451; Woolford v. Dugan, 2 Ark. 131; Roseman v. Miller, 84 Ill. 297. (8) Where a statute specifically prescribes the character and manner of the process, it must be strictly followed. Hyde v. Goldby, 25 Mo.App. 29. (9) The court has no jurisdiction of the defendant until a legal summons is served. The defendant cannot be put to the costs and trouble of appearing in court until served with a summons which complies with the specific provisions of the law as enacted by statute, and by the provisions of the State Constitution. Choate v. Spencer, 13 Mont. 127, 20 L.R.A. 424, 32 P. 651, 20 Mont. 555, 52 P. 558; Kipp v. Burton, 63 L.R.A. 325; Coffin v. Bell, 22 Nev. 185, 37 P. 240. (10) Void process is defined to be such as was issued without power in the court to award it, or which the court has not acquired jurisdiction to issue, in the particular case, or which fails in some material respect to comply with the requisite form of legal process. Irregular process is such as a court has general jurisdiction to issue but which is unauthorized in the particular case by reason of the extrinsic or non-existence of some fact or circumstance rendering it improper in such case.
C. E. Prettyman and J. A. Sturges for respondent.
No brief filed by respondent.
This is an appeal from an order overruling a motion to quash an execution. Plaintiff and defendant were divorced in 1913. There were four children born of the marriage and their custody was awarded to plaintiff, and she was allowed $ 3000 alimony in gross. On June 11, 1919, plaintiff filed a suit against defendant to recover what she had paid out of her own funds for the support and maintenance of the children. Judgment went by default, execution issued, the sheriff levied upon defendant's lands, and motion was filed to quash the execution. The ground of the motion is that there was no valid service on defendant. By the parol of evidence admitted it appears that the sheriff delivered to defendant a copy of a petition and summons which purported to be in the present case, and a copy of a summons which purported to be in the original divorce case. Plaintiff was seeking to have that case opened up and the future support of the children provided for in that case. But the present case is all that is concerned here. The copy of the summons was not signed by the clerk, and the seal of the court was not on it. It was no more than what is commonly called a blank summons, except the style of the present case was filled in on a typewriter, and dated in the same manner. The clerk testified that the typewriting on the paper called a summons looked like the writing of his typewriter. The copy of the petition was not attached to anything. These three papers, unsigned and uncertified were handed defendant by the sheriff at one and the same time. The sheriff made his return on the original summons which was properly signed and sealed, showing proper and valid service. Defendant took the three papers delivered to him by the sheriff and sought the advice of a lawyer. He was advised that the service was bad, and that there was "nothing to it." He made no appearance, and judgment went by default as stated.
There is but one proposition briefed by appellant and that is the validity of the judgment under the facts stated. The question is, can defendant go behind the return showing valid service and impeach that return on a motion to quash the execution? In Smoot v. Judd, 184 Mo. 508, 83 S.W. 481, the principle involved here is most thoroughly and elaborately considered and the rule in Missouri announced to be that the...
To continue reading
Request your trial