Boysen v. McCullough and Patterson

• Decision Date: 15 February 1945
• Docket Number: No. 6548.,6548.
• Citation: 185 S.W.2d 824
• Parties: BIGELOW BOYSEN AND ALICE E. BOYSEN, APPELLANTS, v. DR. MELVIN McCULLOUGH AND RUSSELL PATTERSON, SHERIFF OF NEWTON COUNTY, MISSOURI, RESPONDENTS.
• Court: Missouri Court of Appeals

185 S.W.2d 824

BIGELOW BOYSEN AND ALICE E. BOYSEN, APPELLANTS, v. DR. MELVIN McCULLOUGH AND RUSSELL PATTERSON, SHERIFF OF NEWTON COUNTY, MISSOURI, RESPONDENTS.

No. 6548.

Springfield Court of Appeals. Missouri.

February 15, 1945.

Appeal from Circuit Court of Newton County. — Hon. Emory E. Smith, Judge.

AFFIRMED.

Ruark & Ruark for appellants.

The jurisdiction of the justice court in Newton county is limited to $250, including the value of the property sought to be recovered in the replevin action. Sec. 2934, R.S. Mo. 1939; Alexander v. McFarland, 203 Mo. App. 229, 213 S.W. 488; Stephens v. Reberet, 186 Mo. App. 456. The claim is inseparable and is not affected by a subsequent reduction or remittitur. State ex rel. Wholey v. Porterfield, 221 Mo. App. 666, 283 S.W. 459. The excess of jurisdiction makes the whole judgment void in entirety; and this question may be raised at any time, and in any court. Western Oil & Gas Co. v. O'Dell, 115 S.W. (2d) 134; Jones v. St. Joseph Gazette Co., 385 S.W. 771; State ex rel. Wholey v. Porterfield, 221 Mo. App. 666. An appeal from a void judgment confers no jurisdiction on the reviewing court, and any action it might take to determine the merits of the controversy would lkewise be a nullity. State v. Smith, 176 Mo. 90; Abernathy v. Moore, 83 Mo. 65; In re Wood Estate, 138 Mo. App. 258; Alexander v. McFarland, 203 Mo. App. 229; Feldman v. Levinson, 93 S.W. (2d) 31. The circuit court's attempted judgment on the petition for writ of certiorari was also invalid as beyond the scope of its jurisdiction in such a proceeding, which did not entitle it to modify the lower court's judgment as to damages, nor to hear oral testimony on the question of fraud. Certiorari, 11 C.J., secs. 379, 380, pp. 210-211; Scott v. Smith, 176 Mo. 90; Ward v. Bd. of Equalization, 135 Mo. 309; State v. Gilbert, 164 Mo. App. 139; State v. Ellison, 268 Mo. 225. The nature of the attempted judgment of the circuit court on the petition for writ of certiorari was conditional or interlocutory and not sufficiently final or definite to issue a valid execution thereon. Judgments, 33 C.J., sec. 667, pp. 1053, 1054; Koch v. Meacham, 121 S.W. (2d) 279, 281; Bishop v. Bishop, 151 S.W. (2d) 553, 557; Haynes v. Trenton, 108 Mo. 123; White v. Reity, 108 S.W. 601. Equity will always intervene to protect against a judgment procured by fraud. Stewart v. Caldwell, 54 Mo. 536, l.c. 539. "A judgment should not, in our opinion, be made an instrument to defeat the very object it is intended to accomplish, that is, justice. It has been said that any fact which clearly proves it to be against conscience to execute a judgment and of which the injured party could not avail himself in a court of law, will justify relief in equity". Sullivan v. Kirkpatrick, 171 Mo. App. 233, l.c. 241; Miles v. Jones, 28 Mo. 87; Marberry v. Price, 57 Mo. 422; Baldwin v. Davidson, 139 Mo. 118; Crow v. Crow-Humphrey, 78 S.W. (2d) 207; Krashin v. Grizzard, 31 S.W. (2d) 984. And equity will intervene to prevent the legal wrong whether the judgment is void and not merely voidable; particularly where fraud or some other well recognized ground for equitable relief is presented. Sec. 1783, R.S. Mo. 1939; Engler v. Knoblaugh, 131 Mo. App. 481; State v. Bd. of Education, 171 S.W. (2d) 75; Mathias v. Arnold, 191 Mo. App. 352; Stockton, Ex'r, v. Ransom, Adm'r, 60 Mo. 535; Smoot v. Judd, 161 Mo. 673; Hansen v. Neal, 215 Mo. 256. Equity will intervene to prevent irreparable injury; such as the threatened taking of an article difficult to replace or of indefinite value. Hill v. Brothers, 217 S.W. 581, l.c. 582. Equity will intervene to protect the respondent on this ground alone. Equity strives to settle all controversies by one determination of the cause. Harrington v. Ryan, 88 Mo. App. 85; Warren v. Coal Co., 300 Mo. App. 442; Pokoke v. Peterson, 256 Mo. 501; Morris v. Hanssen, 78 S.W. (2d) 87; Washington University v. Baumann, 108 S.W. (2d) 403; Lambert v. St. Louis & Gulf R.R. Co., 212 Mo. 692; Webb v. Cope, 192 S.W. 934; Jewell-Tea Co. v. City of Carthage, 257 Mo. 383; Coal Co. v. St. Louis, 130 Mo. 323. The Harrington Case above cited involved a bill to cancel a fraudulent contract and it was contended the petitioner was relegated to her defenses at law against actions arising under the contract. The court sustained the right to equitable relief, saying, l.c. 95: "In the nature of things she would be subjected to the annoyance, in so doing, of merely resisting the enforcing of such contract in different forms and different suits, which might be multiplied to a degree harassing and expensive in the extreme. Besides, by merely legal defenses she would in no instance secure the surrender and cancellation of the fraudulent contract, which would be a fruitful source of mischief while in the hands of the defendant. It is evident therefore that her remedies at law could not be full, complete and adequate in the sense attached to those terms, as depriving a court of equity of the right to exercise jurisdiction in matters concurrently within the jurisdiction of courts of law. Such a remedy on her part would only be partial and would not go to the full extent of establishing her right to a decree, cancelling the instrument evidencing the contract and enjoining the defendant from making it the subject of actions at law in which he might obtain an unfair advantage by abusing the process of the courts in directing its machinery against plaintiff or her property. One of the appellants is an officer in the United States Army. The profession of the other is that of an active registered Christian Science Practitioner. Both appellants occupy positions tantamount to Ministers in the Church of which they are members. It is alleged that the maintenance of the judgments prejudices them in these respects. It has long been held that money damages are not an adequate remedy for continuing injury to reputation and profession, and that equity will intervene on this account. Injunctions, 32 C.J., secs. 32 and 209, pp. 54 and 155; Warren v. Coal Co., 200 Mo. App. 442; Wolf v. Harris, 267 Mo. 405; Schubach v. McDonald, 179 Mo. 163; Glaessner v. Anheuser-Busch, 100 Mo. 508; Chas. Reilly Optical Co. v. Burke, 41 S.W. (2d) 907; Glover v. Shirley, 169 Mo. 637. It is also alleged that appellants are the owners of certain described real estate and that the continued maintenance of such judgments are a cloud upon their title. It is apparent that the maintenance of such judgments, and the threats of judicial sale thereunder, is an effective bar to a free sale of the property; and equity will exercise its authority to relieve such situation. Madden v. Fitzsimmons, 150 S.W. (2d) 761; Gardiner v. Terry, 99 Mo. 523; Payne v. Daviess Co. Sugs Assn., 126 Mo. App. 593.

Wayne V. Slankard for respondents.

A court of equity will not enjoin execution issued on a void judgment. Howlett v. Turner 93 Mo. App. 20; Straub v. Simpson, 74 Mo. App. 230; St. Louis, I.M. & S. Ry. Co. v. Reynolds, 89 Mo. 146; St. Louis & S.F. Ry. Co. v. Lowder, 138 Mo. 533, 39 S.W. 799; Ostmann v. Frey, 148 Mo. App. 271, 128 S.W. 253, Gregory Bus Line v. Stephens, 223 Mo. App. 1036, 15 S.W. (2d) 910; 34 C.J., sec. 682, p. 434; 32 C.J., sec. 39, p. 61. And this is true even where land is sought to be sold under such execution. Henman v. Westheimer, 110 Mo. App. 191, 85 S.W. 101; Marsala v. Gentry (Mo. App.), 232 S.W. 1046. And a void instrument, record or judgment not constituting a cloud on title aid of a court of equity cannot be invoked. Thorp v. Miller, 137 Mo. 231, 38 S.W. 929; Clark v. Covenant Mutual Life Ins. Co., 52 Mo. 272; Hannibal & St. J.R.R. Co. v. Nortoni, 154 Mo. 142, 55 S.W. 220. A judgment, void on its face, binds no one, and hence action in equity will not lie to set such judgment aside. Stockton, Ex'r, v. Ransom, Adm., 60 Mo. 535 (This case relied on by Appellants); Nat'l Union Fire Ins. Co. v. Vermillion (Mo. App.), 19 S.W. (2d) 776; Tokash v. Workmen's Compensation Commission, 346 Mo. 100, l.c. 109, 139 S.W. (2d) 978; Freeman, Judgments (4th Ed.), sec. 117; 34 C.J., sec. 811, p. 509. No resort to a court of equity can be had where an adequate and complete remedy at law exists. 21 C.J., sec. 14, p. 35; State ex rel. Nute v. Bruce, 334 Mo. 1107, 70 S.W. (2d) 854. Appellants have complete and adequate remedies at law. Proceedings under the statutes provide full, complete and adequate remedy at law for staying, setting aside, or quashing an execution, and bill in equity is not proper. Secs. 1387, 1388 and 1389, R.S. Mo. 1939; Jones v. Overall, 223 Mo. App. 266, 13 S.W. (2d) 581; 34 C.J., sec. 692, page 401. Writ of certiorari will lie to bring up record of inferior court to determine if such court acted within its jurisdiction. State ex rel. Spencer v. Anderson (Mo. App.), 101 S.W. (2d) 530; State ex rel. Bentley v. Reynolds, 190 Mo. 578, 89 S.W. 877. Replevin is the proper remedy of the appellants against the purchaser at the execution sale. St. Louis & S.F. Ry. Co. v. Lowder, 138 Mo. 533, 39 S.W. 799; Gregory Bus Line v. Stephens, 223 Mo. App. 1036, 15 S.W. (2d) 910, and cases there cited. Void judgment may be collaterally attacked whenever and wherever it comes in the way. Abernathy v. Mo. Pac. Ry. Co., 287 Mo. 30, l.c. 38.

VANDEVENTER, J.

This cause had its origin in the circuit court of Newton County, Missouri, on the 18th day of April, 1944, by the appellants' filing a petition seeking to restrain the sheriff of Newton County and one Dr. Melvin McCullough from levying, or causing a levy to be made, upon appellants' property by virtue of an execution, based on a judgment of said circuit court. On the same day, a temporary injunction was asked and granted by the judge of said court in vacation. The petition was later amended, a demurrer filed thereto, sustained by the court and the temporary injunction dissolved. Appellants refused to plead further and their petition was dismissed. An affidavit for...