Bobb v. Woodward

• Court: Missouri Supreme Court
• Writing for the Court: FAGG
• Citation: Bobb v. Woodward, 42 Mo. 482 (Mo. 1868)
• Decision Date: 31 March 1868
• Parties: JOHN H. BOBB, Respondent, v. EDWARD K. WOODWARD and ERASTUS SMITH, with CHARLES C. WHITTELSEY and WILLIAM P. CURTIS, Appellants.

42 Mo. 482

JOHN H. BOBB, Respondent,

v.EDWARD K. WOODWARD and ERASTUS SMITH, with CHARLES C. WHITTELSEY and WILLIAM P. CURTIS, Appellants.

Supreme Court of Missouri.

March Term, 1868.

Appeal from St. Louis Circuit Court.

As appears from plaintiff's petition, the conveyances of Woodward, spoken of in the opinion of the court, were as follows:

1. Deed of trust, dated May 22, 1860, conveying certain lots of ground near the Pacific Railroad, in the city of St. Louis, to William P. Curtis, trustee of James Givens Brown, to secure the payment of certain principal and interest notes amounting to $4,005. 2. Deed of trust upon the same property, dated February 6, 1861, to Charles C. Whittelsey, trustee of Gray & Crawford, to secure a note of $1,087.80. 3. Deed, dated February 6, 1861, conveying the goods in his place of business in St. Louis, amounting to $20,000, and book accounts and bills receivable, amounting to $15,000, for the alleged sum of $11,360, to defendant, Erastus Smith. 4. Deed, dated April 22, 1861, to Smith, of the lots of ground above mentioned. 5. On the thirteenth day of January, 1867, the same lots were sold under execution against Woodward, and plaintiff became the purchaser.

Whittelsey, for appellants.

I. The judgment was irregular for want of service of process upon Smith. (Gen. Stat. 1865, p. 681, § 12; id. p. 655, § 13; Janney v. Spedden, 38 Mo. 395; Durossett's Adm'r v. Hale, 38 Mo. 346; Roach v. Burnes et al., 33 Mo. 319; Abbott v. Dunivin, 34 Mo. 148.)

II. There is a defect of parties upon the final decree, Woodward being a necessary party. (Story Eq. Pl., Red. ed., §§ 207, 210, 216 a., and notes, 236; Shaver v. Brainard, 29 Barb. 25; Ward v. Hollins, 14 Md. 158; 1 Dan. Ch. Pr. 384-88; 2 id. 37; Dillon's Adm'r v. Bates, 39 Mo. 292; Greenleaf v. Queen et al., 1 Pet. 139; Van Epps et al. v. Van Deusen, 4 Paige Ch. 64, 75; Vanderwerker v. Vanderwerker, 7 Barb. 221, 224; Baldwin v. Lawrence, 2 Sim. & Stu. 18; Court v. Jeffrey et al., 1 Sim. & Stu. 108; Stafford v. City of London, 1 P. Wms. 428.)

III. The petition was defective by combining several causes of action in one count, and the judgment should have been arrested. (Hoagland v. Hann. & St. Jo. R.R. Co., 39 Mo. 457; Clark v. Hann. & St. Jo. R.R. Co., 36 Mo. 202; Ederlin v. Judge, 36 Mo. 350; McCoy v. Yerger, 34 Mo. 104; Gen. Stat. 1865, p. 657, § 2; id. p. 660, §§ 18, 23; Story Eq. Pl. §§ 271, 288, 530-41.)

IV. The charges in the petition are inconsistent with each other. (Benoist v. Darby's Ass., 12 Mo. 196, 208; Smith v. Hodson, 4 T. R. 211.)

5. The petition upon its face shows that plaintiff's cause of action is barred by limitations. (R. C. 1855, p. 1047, §§ 1, 3, 5; Maxwell v. Kennedy, 8 How. 210, 222; Hovenden v. Annesley, 2 Scho. & Lef. 607, 638; Keaton v. Greenwood, 8 Geo. 97; Campbell v. Montgomery, 8 Geo. 106; Pierson v. David, 1 Clarke, Io., 23, 32; Van Hook v. Whitlock, 7 Paige Ch. 373; Humbert v. Trinity Church, 7 id. 195; Denny v. Gilman, 26 Me. 142; Story Eq. Pl., Red. ed., §§ 484, 503, n. 4; State to use of v. Bird, 22 Mo. 470; Taylor v. Blair, 14 Mo. 437.)

VI. Smith as a creditor was entitled to accept a preference, and the price he paid for the debts purchased cannot affect his character as a creditor. ( In re Houghton, 5 Law Rep. 321; Ex parte Lee, 1 P. Wms. 782; Kuykendall et al. v. McDonald, 15 Mo. 416, 420; Exchange Bank v. Fitch, 48 Barb., N. Y.; Potter v. Stevens, 31 Mo. 62, 75.)

Cline, Jamison & Day, for respondent.

Defendant, Smith, has twice appeared in this case--once to move the court to set aside the judgment by default, and once to move in arrest of judgment; and now, after the term has passed at which judgment was rendered, he appears a third time, to move to set aside the default and final judgment, assigning a new ground, viz: the want of proper service. This cannot be done.

I. Defendant, by moving the court to set aside judgment by default against him in this cause, and by his motion in arrest of judgment, submitted himself to the jurisdiction of the court, and waived all errors in pais, both as to process and proceedings, except the single question as to the sufficiency of plaintiff's petition to support the decree, which he submitted to the court for its final decision. (Dillingham v. Skein, 1 Hemp. 181; McCoy v. Lemons, id. 216; Mahoney v. Penman, 4 Duer, 603; Winchester v. Cox, 2 Iowa, 575; Lampley v. Beavers, 25 Ala. 534; The People v. Banker, 1 Seld., N. Y., 106; Brayton v. Freeze, 1 Carter, Ind., 121; Treiber v. Shafer, 18 Iowa, 29; Bucher v. James, 2 Scam. 462; Whiting et. al. v. Budd, 5 Mo. 444; Ferris v. Hunt, 20 Mo. 464; Smith's Adm'r v. Rollins, 25 Mo. 410; Whiting & Williams v. Budd, 5 Mo. 443; Carroll v. Dorsey, 20 How. 204; Chaffee v. Hayward, id. 208; Townsend v. Stoddard, 26 Geo. 430; Pennio v. Wallis, 37 Miss. (8 George) 172; 12 Ind. 257; Pomeroy v. Pitts & Mellon, 31 Mo. 419; Dillinger's Adm'r v. Higgins, 26 Mo. 180; Baker v. Stonebraker's Adm'r, 34 Mo. 173; Warren & Dalton v. Turk, 6 Mo. 102; Lewis v. Nuckolls, 26 Mo. 278.)

It is admitted that, in cases of defective service, parties can appear for the sole purpose of taking advantage of the defect, whether before or after final judgment; and such appearance constitutes no waiver of the defect, as it is merely coming into court and objecting to the proceedings on the ground of jurisdiction of the person by reason of the defective service. (Lincoln v. Hellers, 36 Mo. 149; Smith's Adm'r v. Rollins, 25 Mo. 408.) But this must be the first appearance of the party and the first step taken by him; if he appears for any other purpose, then the question is waived. (Bohn v. Develin, 28 Mo. 319; Davis v. Woods, 7 Mo. 162; Meyers v. Woolfolk, 3 Mo. 246; Burnell et al. v. Lynch, 3 Mo. 261; Malone v. Clark, 2 Hill, 657; Philibart v. Evans, 25 Mo. 323; Dillinger v. Higgins, 26 Mo. 180; Hembree v. Campbell, 8 Mo. 572; 2 Sandf. 209, n. 1; Malone v. Clark, 2 Hill, 657; Rector et al. v. Circuit Court of St. Louis County, 1 Mo. 433.)

II. Defendant was duly served with notice, and the publication as made called upon him to defend all interest he might have or claim to have in the two lots of ground described therein. It notified him that the plaintiff called upon the court to divest all title to said lot and vest it in him. The nature and character of the suit was to defeat all pretenses and claims of said Smith to said lots; and even if he had not appeared and waived all objection to its sufficiency, it should be held sufficient. (Stagg v. Franklin & Fitch, 18 Mo. 299.)

FAGG, Judge, delivered the opinion of the court.

The petition filed in this case contains in its statement of the cause of action two general grounds for relief, blended together in the same count.

The plaintiff below claimed title to certain real estate in the city of St. Louis, acquired by purchase at sheriff's sale under an execution against E. K. Woodward. It was charged that Woodward was then in possession of the property, holding and claiming it as his own. It proceeds to set out with great minuteness a statement of facts tending to show a combination and confederation on the part of Woodward and his brother-in-law, Smith, to cheat, hinder, delay, and defraud the creditors of the former by making a fraudulent sale and transfer of all his property, real and personal. It is alleged that in pursuance of this fraudulent purpose a pretended sale and transfer of a stock of books worth twenty thousand dollars ($20,000), and the book accounts, notes, etc., amounting to fifteen thousand dollars ($15,000), was made to Smith in consideration of the sum of eleven thousand three hundred and sixty dollars ($11,360), no part of which was ever actually paid; that the business was carried on afterward in the name of an agent, under the superintendence and control of Woodward, and for his sole use and benefit; that the real estate mentioned had also been conveyed to Smith, in fraud of the rights of creditors, so as to enable Woodward to use and occupy the same for his own benefit, he being at the time wholly insolvent; that previous to these transactions two deeds of trust covering the same property had been executed by Woodward, and that Smith had taken up the notes, which were thereby secured, with means arising from the business carried on as above stated; that these deeds remained unsatisfied upon the records of the county, notwithstanding the debts were thus fully paid off and discharged, and with the conveyance to Smith constituted a cloud on plaintiff's title.

Woodward, together with the trustees mentioned in the deeds, and also Smith, were made parties defendant, and the court was asked to make a decree declaring the deed of conveyance to Smith to be null, fraudulent, and void, as to the plaintiff, and that all of the right, title, and interest in the same be vested in him; that the two deeds of trust be decreed satisfied and paid; and further, that “the court decree the plaintiff entitled to the possession of the two lots aforesaid, and that a writ issue out of the clerk's office of this court, directed to the sheriff, for the possession thereof.”

The three first-named defendants were personally served, and appeared and pleaded to the action by way of demurrer. Smith, being a non-resident, was notified by publication, and failing to appear at the proper time a judgment by default was taken against him. This, at the subsequent term of the court, was made final, and the cause dismissed as to the other defendants. The demurrers on the part of these defendants were all sustained, but no amendment of the petition was actually made, and no judgment entered up for them. On the day of the rendering of the final decree in the cause, Smith, appearing by attorney for that purpose alone, moved in arrest of judgment, and afterward moved to set aside the same for irregularity. Both motions being overruled, an appeal has been duly prosecuted to this court.

It is admitted that under our system of practice...