Burkard v. Hahne
| Decision Date | 04 June 1929 |
| Docket Number | No. 20811.,20811. |
| Parties | BURKARD v. HAHNE et al. |
| Court | Missouri Court of Appeals |
Appeal from St. Louis Circuit Court; H. A. Hamilton, Judge.
"Not to be officially published."
Action by Joseph J. Burkard against Charles W. Hahne, the Missouri Silica Company, and others. Plaintiff took judgment by default, and thereafter defendant first named moved to quash execution issued thereon, and appeals from an order overruling his motion. Affirmed.
Turner & Baker and McNearney & Murphy, all of St. Louis, for appellant.
Durward S. Brown and Carl F. Boester, both of St. Louis, for respondent.
On January 20, 1928, in the circuit court of the city of St. Louis, plaintiff, the lawful holder of a certain promissory note, instituted an action upon the same against Missouri Silica Company, a Missouri corporation, as maker, and against Charles Spier, R. F. Zimmer, and Charles W. Hahne, as indorsers thereon. Service upon the several defendants, as shown by the return made by the sheriff to the writ, was had in the following manner:
On April 20, 1928, and during the April term of court, the case was called for trial, and, the defendants not appearing, judgment was rendered by default in favor of plaintiff, and against all the defendants, in the total sum of $3,248.38, from which no appeal was taken. At the succeeding June term of court, plaintiff sued out an execution under the judgment, whereupon defendant Hahne filed his motion to quash the execution on the ground that the court had acquired no jurisdiction over his person, in consequence of which the judgment rendered against him was void and of no force and effect. After a consideration of the motion to quash, the court overruled the same, from which order defendant duly perfected his appeal to this court, and now insists most earnestly that the court was in error in its ruling.
The entire controversy centers around the effect to be ascribed to the fifth subdivision of section 1186, R. S. 1919, relating to the service of summons upon defendants, and providing, in substance, that, where there are several defendants, summons shall be executed by delivery to the defendant who shall be first summoned a copy of the petition and writ, and to such as shall be subsequently summoned a copy of the writ only. Counsel for appellant argue that the delivery of a copy of the petition, as well as of the writ, to the defendant first served, is mandatory under the statute, and that such form of service is a condition precedent to valid service upon the defendants subsequently summoned by delivery to them of a copy of the writ only.
A reference to the sheriff's return in this case discloses that the petition and writ were both served upon defendant Missouri Silica Company on January 23, 1928, but that such defendant was not the first one summoned, since two days earlier, or on January 21, 1928, service had been obtained upon appellant by delivering to him a copy of the writ only. In view of these facts, appellant's counsel argue that the service upon their client did not comply with the provisions of the statute; that the court acquired no jurisdiction over his person thereby; that the judgment rendered against him was void for want of jurisdiction; and that, consequently, the execution issued pursuant to such judgment was subject to be quashed on motion filed for such purpose.
Assuming that appellant was the defendant first summoned, since both parties treat the case on that theory, there can be no denial of the fact that the form of service upon him was not in conformity with the letter of the statute. As the first defendant summoned, he, and not his codefendant, Missouri Silica Company, should have been served with a copy both of the writ and of the petition. The important question for our determination, therefore, is whether the defect in the service as to him was such as to render the judgment against him absolutely void, or whether instead it was but an irregularity which did not rise to such dignity as to deprive the court of jurisdiction to hear the case. Incidentally, there is the further question for consideration as to whether the motion filed to quash the execution was a direct or a collateral attack upon the judgment.
As regards the first point, the basic rule is that, where there is no service whatsoever, the court acquires no jurisdiction, and its judgment is void; but that, where the service is simply defective or irregular, the judgment rendered is not void, but only subject to be set aside by the court which gave it, upon proper and reasonable application, or else reversed on appeal. Thompson v. Chicago, S. F. & C. Ry. Co., 110 Mo. 147, 19 S. W. 77. Otherwise stated, a defect in the form or matter of the summons or other process not absolutely destructive of its validity, as...
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