Brackett v. Brackett

• Decision Date: 31 October 1875
• Citation: 61 Mo. 221
• Parties: SAMUEL J. BRACKETT, Appellant, v. JAMES L. BRACKETT, Respondent.
• Court: Missouri Supreme Court

61 Mo. 221

SAMUEL J. BRACKETT, Appellant,

v.JAMES L. BRACKETT, Respondent.

Supreme Court of Missouri.

October Term, 1875.

Appeal from Pettis County Circuit Court.

F. Houston & R. S. McDonald, for Appellant.

I. Defendant appeared to the plea in abatement, and that being decided in his favor, the court was authorized (Wagn. Stat., 189-90, § 42) to proceed with the case to final judgment.

II. The return on the original summons only shows that defendant was served in St. Louis county, and this fact being before the court, when judgment was heretofore rendered, it will be presumed in favor of the judgment that the court had jurisdiction. (53 Mo., 267.)

III. Having failed to set up non-residence and want of jurisdiction at the proper time, it is now too late, and he is bound by the judgment. Hence, Peery vs. Harper (42 Mo., 131), will apply to this case.

IV. As to the note, the judgment on the sixth day was proper. If erroneous in amount he should have moved to set it aside at the term at which it was rendered. If the sum is not greater than the amount claimed in the petition, it is not erroneous. (See Wagn. Stat., 1054, § 12; Whit. Mo. Pr., p. 470, §§ 383, 363-4; Campbell vs. Gorton, 29 Mo., 343; Tennison vs. Tennison, 49 Mo., 110.)

V. The oral testimony offered by defendant contradicted the record and was incompetent.

Snoddy & Bridges, for Respondent.

I. Both parties being non-residents of Pettis county, suit by summons could not be instituted there, (Wagn. Stat., 1005, §§ 1, 2) and the plea in abatement being dissolved, the action stood as though so instituted; hence, judgment could not be rendered by default. (See Peery vs. Harper, 42 Mo., 131; Latimer vs. Union Pac. R. R., 43 Mo., 109.)

II. The suit was on an account and judgment was properly quashed. (3 Bouv. Inst., 3342; Parker vs. Han. & St. Jo. R. R. 44 Mo., 415.)

III. The record is conclusive proof that defendant resided in St. Louis county.

IV. Defendant had all of the sixth day in which to answer (Wagn. Stat., 1014, § 5), and the judgment was irregular and could be set aside on motion. (See Doan vs. Holly, 26 Mo., 186; Morp vs. Burris, 31 Mo. 308; Aderton vs. Collier, 32 Mo., 507; Lombard vs. Clark, 33 Mo., 308; Stacker vs. Cooper Circuit Court, 25 Mo., 401; Harber vs. Pac. R. R. Co., 32 Mo., 423; Branstetter vs. Rives, 34 Mo., 318; Lawther vs. Agee, 34 Mo., 372; Hart vs. Walker, 31 Mo., 26.)

WAGNER, Judge, delivered the opinion of the court.

When this cause was in this court upon a former occasion, the judgment of the lower court quashing the execution was reversed, because the points made for the appellant did not sufficiently appear in the record as then presented. (Brackett vs. Brackett, 53 Mo., 265.)

After the decision in this court, plaintiff obtained the issuance of a new execution, and the defendant appeared in court within the time limited by the statute, and moved to set aside the judgment for irregularity, and also to quash the execution. This motion was sustained, and plaintiff appealed. The original proceedings are now before us, and the question is directly raised whether such irregularities were committed as would authorize the setting of the judgment aside, and whether the court had any jurisdiction at all of the case.

The suit was instituted by attachment in the common pleas court of Pettis county, and the petition contained three counts. The first was upon a promissory note, and the two others were for money loaned at different times. At the return term the defendant appeared and filed a plea in abatement to the attachment, and upon that matter being submitted to the court, the issue was found for the defendant. Defendant made no further appearance, and on the sixth day of the term a final judgment was entered against him. It is insisted that this was irregular, as upon the two last counts he had six days in which to file his answer if the court continued so long, and it is shown that the court was in session for several days afterwards. If the judgment was rendered upon the last two counts, the action of the court was premature and irregular, for it has been frequently decided that where a party has a certain number of days in which to plead or answer, it is error to take judgment on the last of those days or before they have all expired. (Doan vs. Holly, 26 Mo., 186; Hart vs. Walker, 31 Mo., 26; Branstetter vs. Rives, 34 Mo., 318; Lawther vs. Agee, Id., 372.) But the record leaves it in doubt as to whether judgment was really rendered on anything more than the first count, which was founded upon the note. It is true that the amount for which the judgment was given was greatly in excess of what was due on the note, and was probably large enough to comprehend all that was included in three counts. The judgment entry is that “the court finds from the pleadings...