Bieser v. Woods

• Decision Date: 03 April 1941
• Parties: FRANK W. BIESER AND R. H. GARVEY, RESPONDENTS, v. WEIGHTSTILL WOODS, APPELLANT
• Court: Missouri Court of Appeals

150 S.W.2d 524

236 Mo.App. 126

FRANK W. BIESER AND R. H. GARVEY, RESPONDENTS, v. WEIGHTSTILL WOODS, APPELLANT

Court of Appeals of Missouri, Springfield

April 3, 1941

Rehearing Denied May 8, 1941.

Appeal from the Circuit Court of Camden County.--Hon. C. H. Skinker Judge.

AFFIRMED (upon condition).

Richard H. Woods and James Glenn McConaughy for appellant.

(1) Respondents abandoned their original petition when they obtained leave to file and did file their amended petition. To determine whether or not they stated a cause of action against appellant, reference can be made only to their amended petition. Sec. 828, R. S. Mo. 1929; Irwin v Burgan, 325 Mo. 309, 28 S.W.2d 1017, 1020; Hagood v Skinner's Executor, 33 Mo. 244, 249; State ex rel. v. Grimm, 197 Mo.App. 566, 573; 1 Houts, Missouri Pleading and Practice, 314, 315; Rule 10, Springfield Court of Appeals. (2) Respondents having abandoned their original petition by filing an amended petition, they should have filed a copy of the note sued upon with such amended petition as provided by Section 815 of the Missouri Statutes. Their amended petition, upon which judgment was entered, did not state a cause of action, since such a copy of the note was never filed with it. Sec. 815, R. S. Mo. 1929; Kliethermes Motor Co. v. Cole Motor Service, Inc., 102 S.W.2d 819, 821; Irwin v. Burgan, 325 Mo. 302, 28 S.W.2d 1017, 1021; St. Louis v. St. Louis-San Francisco Ry. Co., 50 S.W.2d 637, 638. (3) When respondents by their affidavit claimed only $ 3,555.72, as being due from this appellant, and then took judgment for $ 4,302.12 which included attorneys' fees of $ 391.11 and interest which had accrued prior to the date upon which the affidavit was made, they invalidated the whole proceeding and the judgment as entered is void. Sec. 1310, R. S. Mo. 1929; Forsyth v. Warren, 62 Ill. 68; Hobson v. Emporium Real Estate and Mfg. Co., 42 Ill. 306. (4) The respondents' petition failed to state that the non-resident appellant owned any property in the State of Missouri; the respondents never requested the trial court to attach or aid in the attachment of any property of this appellant. This was failure to allege jurisdiction, and invalidates the judgment as entered. Secs. 1278 and 1294, R. S. Mo. 1929. The theory of the case and the record as asserted by opposing counsel shows an incurable defect of parties plaintiff in that the United States Government would be a necessary party to the action. Farley v. Albers, 112 F.2d 401, 404; Elmer v. Copeland, 141 S.W.2d 160; Scott v. First National Bank, 343 Mo. 77, 92; City National Bank v. Oberheide Coal Co. (Ill. App.), 30 N.E.2d 753.

Lamm & Barnett for respondents.

(1) The court will not search the record for errors not specifically pointed out. Coffey v. Higbee, 318 Mo. 10, 298 S.W. 766. (2) 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. 159, l. c. 167. (3) The defendant specifically entered his voluntary appearance by filing his motion to dissolve the attachment. Evans v. King, 7 Mo. 411; First National Bank v. Griffith, 192 Mo.App. 443, 182 S.W. 805, l. c. 809. (4) The court will not consider errors not preserved in the motion for new trial or motion in arrest. Hogan v. Kansas City Public Service Co., 333 Mo. 698, 62 S.W.2d 856. (5) But even if this were an action which accrued in a foreign State, there is no reason why the action should not be maintained in the courts of this State. Sec. 6705, R. S. Mo. 1929; Baisley v. Baisley, 113 Mo. 544, l. c. 548. (6) The record discloses that at the time the amended petition was filed a verified copy of the note was on file, having been attached to and filed with the original petition. In order for the appellant to complain that a copy of the note had not been filed, he would have been compelled to make a motion to dismiss based on that ground and his exception to the overruling of the motion would have had to be preserved in a bill of exceptions. Sec. 967, R. S. 1939; Ry. Co. v. Knudson, 62 Mo. 569; State ex rel. v. Eldridge, 65 Mo. 584; Nat. Bank & Inv. Co. v. Miller, 76 S.W.2d 703; Peake v. Bell, 65 Mo. 224; Burdsal v. Davis, 58 Mo. 138; Natl. U. Fire Ins. Co. v. Nevil, 274 S.W. 503; Mo. P. Ry. v. Clark, 268 S.W. 97. (7) The defendant waived any complaint as to the sufficiency of process when he entered his voluntary appearance. First Nat. Bank v. Griffith, 192 Mo.App. 443, 182 S.W. 805, l. c. 809. (8) The voluntary entry of appearance by the defendant gave the court full jurisdiction over the person of the defendant to render a personal or general judgment. Baisley v. Baisley, 113 Mo. 544, l. c. 549. (9) A voluntary entry of appearance was made by the defendant and the plaintiffs, upon the defendant entering his appearance and filing what the plaintiffs construed to be an answer, made and filed an attachment bond, all in accordance with the well-established Missouri practice. Sec. 1278, R. S. Mo. 1929. (10) The Circuit Court of Camden County, Missouri, being a court of general jurisdiction, certainly had jurisdiction of the subject-matter of a suit on a promissory note and of suits by attachment.

FULBRIGHT, J. Blair, P. J., and Smith, J., concur.

OPINION

FULBRIGHT, J.

--This is a suit on a $ 2,000 note commenced by attachment of land in Camden County, owned by defendant, a nonresident of this State. A general judgment against defendant was entered for plaintiff for principal and interest in the total amount of $ 3911.12 and for $ 391.00 attorneys' fee. From this judgment defendant appealed to the Supreme Court. On the 21st day of February, 1941, the Supreme Court disposed of the constitutional and jurisdictional questions alleged to be involved and transferred the cause to this court. [Bieser, et al. v. Woods, 147 S.W.2d 656.]

The cause was originally instituted on October 21, 1937, by the filing of a petition and affidavit in attachment. The 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, Weight-still 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."

This motion was signed by defendant's attorney, Richard H. Woods. Attached thereto was also affidavit of "Proof of Service of Notice of Motion," signed by defendant 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." On March 26, 1938, thereafter, defendant filed petition and bond for removal of the cause to the United States District Court for the Western District of Missouri. The cause was removed and defendant filed an answer and counterclaim in the United States District Court. On September 3, 1938, the United States Court remanded the cause to the Circuit Court of Camden County. Thereafter, on October 15, 1938, a pleading entitled "Plea to Jurisdiction over Subject Matter of Suit" was filed.

Defendant's abstract shows that a Bill of Exceptions was allowed and filed, but very little of it is set out. Furthermore, important parts of the record proper are omitted. These matters, or at least part of them, are supplied by plaintiffs' additional abstract. Concerning these omissions on the part of the defendant the Supreme Court, in the case of Frank W. Bieser et al. v. Weightstill Woods, supra, has the following to say:

"Not only does defendant's abstract omit such obviously essential parts 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 plaintiffs' 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; 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."

Plaintiffs' additional abstract of the record is therefore properly before us.

Since its transfer defendant has filed an additional or supplemental statement, brief and argument, wherein he sets forth the following Assignment of Errors:

"The trial court erred in refusal to quash all writs and dismiss the suit, because there was insufficient pleading and record to sustain any kind of a judgment.

"The ...