Branstetter ex rel. Branstetter v. Rives

• Decision Date: 31 January 1864
• Parties: MARY E. BRANSTETTER, GUARDIAN OF THE MINOR HEIRS OF DANIEL J. BRANSTETTER, Respondent, v. BENJAMIN A. RIVES AND CHARLES A. MATKINS, Appellants.
• Court: Missouri Supreme Court

34 Mo. 318

MARY E. BRANSTETTER, GUARDIAN OF THE MINOR HEIRS OF DANIEL J. BRANSTETTER, Respondent,

v.BENJAMIN A. RIVES AND CHARLES A. MATKINS, Appellants.

Supreme Court of Missouri.

January Term, 1864.

Appeal from Ray Circuit Court.

E. B. Ewing, for appellants

I. Rives had the right to plead to the petition on or before the sixth day of the term, (Prac. Act, 2 R. C. 1230, § 5,) and the judgment having been rendered against him on the fourth day was irregular and should have been set aside.

II. This judgment having been irregular, it was the duty of the court to set it aside, although the motion for that purpose was not made until the succeeding term. (Stacker v. Cooper Cir. Court, 25 Mo. 401; id. 352.) This may be done within three years after such irregular judgment is rendered. (R. C. 1855, p. 1290, § 26.) If the motion to set aside be made at any time within this period, the Circuit Court cannot refuse it because of any supposed unreasonable delay in presenting it.

III. An irregularity in judicial proceedings is the want of adherence to some prescribed rule or mode of proceeding, and it consists either in omitting to do something that is necessary for the due and orderly conducting of a suit, or doing it in an unseasonable time or improper manner. (1 Tidd. Prac. 512.) A judgment by default is irregular when it is rendered before the time for pleading is expired. ( Id. 513.) An error is where the court, in the regular course of an action or judicial proceeding, makes a mistake of the law.

IV. Where a judgment is irregularly rendered against the provisions of a statute or the rules of court, the party against whom it is rendered is entitled to have it set aside without showing a meritorious defence to the action. (Doan et al. v. Holly, 27 Mo. 257, 258; 3 Chit. Prac. 543.)

When the directions of a general statute are clear and peremptory, all the courts and every judge are alike bound to give full effect to the statute, and have no discretionary power to refuse to set aside a proceeding for irregularity when it has deviated from a rule prescribed by the act. (3 Chit. Prac. 51.)

Ryland & Son, for respondent.

I. The service of the process in this case on Rives being regular and proper, according to the statute of the State, the court had jurisdiction of the whole matter, the subject of the action and of the parties thereto. The judgment, therefore, is not void, not a nullity, and even though it be taken within the time allowed defendant to answer, cannot be set aside at any subsequent term of the court. (Ashby v. Glasgow et als. 7 Mo. 320; Brewer v. Dinwiddie, 25 Mo. 351.)

II. The Circuit Court of Ray county being a court of general and original jurisdiction, whenever a party defendant to a suit in said court has been served with proces in the suit, the court having jurisdiction of the subject matter thereof, the service according to law of the process immediately gives to the court jurisdiction of the defendant, and a judgment rendered in such case is not a nullity, is not void, though for error it may be reversed. Where the court had cognizance of the cause, the judgment can only be erroneous; but if the court had not the jurisdiction, it is void (Bul. N. P. 66; Coleman v. McAnulty, 16 Mo. 173.) The decisions of this court, declaring certain proceedings void, when had before justices of the peace, do not apply with force to proceedings of courts of general jurisdiction.

III. The defendant not appearing at the term, nor offering to answer, nor showing any cause for failure to appear, the judgment cannot afterwards, even at the same term, be set aside, without showing good and substantial cause touching the merits of the case; nor can the administrator, at any subsequent term, successfully move to set the same aside. (Warder v. Taintor, 4 Watts, 270, 278, and authorities there cited.)

IV. The appellant, by the record now before this court, does not pretend that any injustice has been done by the judgment of the court against Rives; does not show that he has been deprived of the privilege of making a defence; but contends that the single fact of the judgment being two days before the end of the time allowed him to appear and plead, is therefore a nullity. This cannot be so. (2 R. C. 1855, p. 1280, § 12, 13 et seq.)

V. In Wittenburgh v. Wittenburgh, 1 Mo. 226, it was ruled by this court that the death of the defendant being suggested on the record, the entry of a judgment against him after such suggestion is clearly erroneous. In Jeffrie v. Robideau, 3 Mo. 33, this court held that irregularity is no cause of reversal until the irregularity is brought before the court below to be acted. (Ashby v. Glasgow et als. 7 Mo. 320; Smith v. Ross et al. 7 Mo. 463; Anderson v. Brown, 9 Mo. 368; Doan v. Holly, 27 Mo. 256.)

BAY, Judge, delivered the opinion of the court.

The respondent, Mary E. Branstetter, brought suit in the Ray Circuit Court against Benjamin A. Rives and C. A. Matkins, on a promissory note. The process was returnable to the March term, 1862, and was served on Rives by leaving a copy of the petition and writ at his usual place of abode with a white person of the family over the age of fifteen years; on the fourth day of the term, and before the expiration of the time allowed by the statute to the defendants to appear and answer the petition, judgment was rendered against them. At the September term following, (Rives having in the meantime died,) John W. Shotwell, as administrator of Rives, filed a motion to set aside the judgment, for the reason that the suit being...