Bieser v. Woods

• Decision Date: 14 February 1941
• Docket Number: 36852
• Parties: Frank W. Bieser and R. H. Garvey v. Weightstill Woods, Appellant
• Court: Missouri Supreme Court

147 S.W.2d 656

347 Mo. 437

Frank W. Bieser and R. H. Garvey v. Weightstill Woods, Appellant

No. 36852

Supreme Court of Missouri

February 14, 1941

Rehearing Denied January 4, 1941. Motion to Transfer to Banc Denied February 14, 1941.

Appeal from Camden Circuit Court; Hon. C. H. Skinker Judge.

Transferred to Springfield Court of Appeals.

Richard H. Woods for appellant; James Glenn McConaughy of counsel.

Lamm & Barnett for respondents.

The appellant's purported assignment of error does not conform to the rules of this court providing that "The brief for appellant shall distinctly allege the errors committed by the Trial Court." Rule 15, S.Ct. The court will not search the record for errors not specifically pointed out. Coffey v. Higbee, 318 Mo. 10, 298 S.W 766. The court will not consider assignments of error which are so general and indefinite that they do not enable opposing counsel and the court to see upon what points appellant asks a reversal. Johnston v. Ragan, 265 Mo. 420, 178 S.W. 167.

Hyde, C. Bradley and Dalton, CC., concur.

OPINION

HYDE

This is a suit on a $ 2000 note, commenced by attachment of land in Camden County owned by defendant, who is a non-resident of this State. A general judgment against defendant was entered for plaintiffs for principal and interest in the total amount of $ 3911.12, and for $ 391 attorney's fee. Defendant has appealed.

Defendant contends that this court has jurisdiction of this appeal because constitutional questions are involved. These questions all are based upon a pleading entitled "Plea to Jurisdiction of the Court," filed November 14, 1938. This suit had been commenced a year earlier, on October 21, 1937. An attachment writ was personally served on defendant in Chicago, Illinois, by the Sheriff of Cook County on November 24, 1937. Thereafter, on November 30, 1937, defendant filed the following pleading, entitled "Motion to Dissolve Attachment," to-wit:

"On this 30th day of November, 1937 comes the defendant, Weightstill Woods, a non-resident of the State of Missouri, and enters his voluntary appearance in this cause; and now moves that the Court will dissolve the attachment of lands heretofore had and made herein, so that said attachment, and the levy, abstract and record thereof shall be set aside, for naught held, and of no effect for the following reasons:

"1 -- Because the plaintiff has not given any attachment bond as is in such cases by law made necessary and required:

"2 -- Because said attachment is grossly excessive, and void.

"And defendant further moves that this cause proceed as provided by Section 1313, R. S. Mo. 1929, as an ordinary action commenced by summons." (Our italics.)

This motion was signed by Richard H. Woods, as defendant's attorney. There was also an affidavit attached, of "Proof of Service of Notice of Motion," signed by defendant himself stating that "he served notice of the foregoing motion . . . upon the plaintiff by mailing a copy thereof, addressed to his attorneys, Lamm and Barnett at Sedalia, Missouri, through the United States mails on November 27th, 1937." Thereafter, on March 26, 1938, defendant filed petition and bond for removal of the cause to the United States District Court for the Western District of Missouri.

This petition contained the following allegations:

"Petitioner says that the attachment writ and summons issued in this cause is returnable to the term of this Court which begins March 28, 1938; and that the time for the defendant to plead has not expired. That the suit is one of civil nature over which the District Courts of the United States have original jurisdiction. Plaintiff claims as assignee of a receiver for a National Banking Association. Said attachment writ demands of your petitioner THREE THOUSAND FIVE HUNDRED FIFTY-FIVE DOLLARS. That in executing said writ at the request of the plaintiff, the sheriff has seized upon property of the defendant whose worth and value are many times Three Thousand Dollars. That defendant will file a counterclaim upon the same transaction, by which he should recover far more than three thousand dollars, damages due to petitioner from the plaintiff." (Our italics.)

The cause was removed, and defendant did file an answer and counterclaim in the United States District Court. In this answer, defendant challenged the authority of the receiver of the bank to assign the note sued on to plaintiffs. It also attempted to state something in the nature of a settlement of obligations to the bank with the receiver, which was alleged to be the basis of estoppel. The counterclaim therein stated against plaintiffs was for $ 10,000 actual and $ 10,000 punitive damages. It was based on trespass and wrongful attachment of "certain valuable parcels of land which Weightstill Woods had conveyed away several years before to other persons." The United States Court, on September 3, 1938, remanded the cause to the Circuit Court of Camden County. It was after this remand that defendant filed, on October 15, 1938, a pleading entitled "Plea to Jurisdiction over Subject Matter of Suit," in which for the first time he made any contention as to the jurisdiction of the court. Although defendant's abstract shows that a bill of exceptions was allowed and filed, very little of it is set out. Moreover, some important parts of the record proper are omitted. Defendant's abstract leaves out everything, hereinabove referred to, that occurred between the return of the attachment writ, served on defendant in Chicago November 24, 1937, and the filing of an amended petition and an attachment bond by plaintiff on October 17, 1938. These matters are supplied by plaintiffs' additional abstract.

Not only does defendant's abstract omit such obviously essential part of the record proper, as defendant's voluntary entry of appearance and his answer and counterclaim, but he also seeks to keep them out by a motion to strike plaintiff's additional abstract. This motion does not claim that the additional abstract is incorrect, but says that the matters shown therein are not part of the record proper but must be shown as a part of the bill of exceptions. Summons and return are a part of the record proper because they are usually necessary to show the jurisdiction of the court over the parties. [Smith v. Moseley, 234 Mo. 486, 137 S.W. 971, 974; Kelso v. W. A. Ross Construction Co., 337 Mo. 202, 85 S.W.2d 527.] Certainly, therefore, any matters, which take the place of process, showing general entry of appearance, must likewise be a part of it. [As to appearance being a part see 4 C. J. S. 1211, sec. 735; 3 Am. Jur. 784, sec. 6; Gardner v. Gilbirds (Mo. App.), 106 S.W.2d 970.] The motion to strike is overruled.

On November 14, 1938, defendant filed his above mentioned "Plea to Jurisdiction of the Court." It is this pleading which is the basis of the constitutional questions, which defendant now claims were raised, such as insufficient service, lack of jurisdiction to render a general judgment and unconstitutionality of attachment statutes authorizing proceedings against non-residents, and which defendant now attempts to present in his brief.

The assignments of error therein stated are, as follows:

"The Circuit Court erred in denying due process of law and equal protection of law to appellant, by proceedings contrary to relevant provisions of the Constitutions of the State of Missouri and of the United States, and erred in taking jurisdiction of this suit by attachment, and erred in making any order against appellant, and erred in sustaining the attachment and erred in entering a...