Butler Bros. v. Cantwell

• Decision Date: 12 July 1926
• Docket Number: No. 19327.,19327.
• Citation: 287 S.W. 794
• Parties: BUTLER BROS. v. CANTWELL et al.
• Court: Missouri Court of Appeals

287 S.W. 794

BUTLER BROS. v. CANTWELL et al.

No. 19327.

St. Louis Court of Appeals. Missouri.

July 12, 1926.

Appeal from St. Louis Circuit Court; Victor H. Falkenhainer, Judge.

"Not to be officially published."

Action in justice court by Butler Bros. against Harry J. Cantwell. Judgment by default. Defendant's motion to set aside the execution sale and to quash the execution and all proceedings thereunder was sustained by the circuit court, and W. A. Cooper, purchaser at the execution sale, appeals. Affirmed.

Ernest A. Green, of St. Louis, for appellant.

Hope & Hope, of St. Louis, for respondent.

SUTTON, C.

On the 22d day of May, 1922, plaintiff, Butler Bros., a corporation, commenced suit against the defendant Harry J. Cantwell before William J. Blesse, a justice of the peace of the city of St. Louis. Summons was issued, returnable on June 12, 1922, commanding the constable to summon Harry T. Cantwell to appear before said justice at his office to answer the complaint of Butler Bros., a corporation. The summons was indorsed by the justice as follows:

"At the risk and request of plaintiff, I hereby authorize Thomas Masterson to execute and return this writ."

Upon this summons the special constable made the following return:

"Served the within summons in the city of St. Louis, Mo., this 23d day of May, 1922, by delivering a true copy thereof to Harry T. Cantwell, the within named defendant."

On the return day of the summons, the justice rendered and entered a default judgment in favor of the plaintiff and against the defendant Harry J. Cantwell for the sum of $156.12 and for costs. On June 26, 1922, a certified transcript of this judgment was filed in the office of the clerk of the St. Louis circuit court. On September 4, 1923, an execution Was issued on this judgment by the clerk of the circuit court, directed to the sheriff of Washington county, returnable on the first Monday in December, 1923. On November 8, 1923, the sheriff of Washington county sold to W. A. Cooper, under this execution, 1,000 acres of land belonging to defendant, situate in Washington county, for the price and sum of $65. The sheriff's return on the execution, showing how he executed the same, bears date of November 8, 1923, but the record does not show just when the execution was actually returned to the office of the clerk of the St. Louis circuit court. On November 22, 1923, during the October term, 1923, of said circuit court, defendant filed his motion to set aside the execution sale and to quash the execution and all proceedings thereunder. One of the grounds assigned in the motion is, substantially, that no summons, process, or notice of any kind was served upon the defendant prior to the rendition of the judgment, and that the judgment is therefore void. On the same day, notice of the filing of said motion was served on appellant W. A. Cooper and the sheriff who conducted the execution sale. The plaintiff and W. A. Cooper appeared and contested the motion. Upon the hearing of the motion, the court found that the defendant was not served with summons or other process, prior to the rendition of the judgment against him by the justice, and that the judgment of the justice was therefore void, and ordered that the motion be sustained, that the sale made under the execution be set aside, and that the execution and all proceedings thereunder be quashed. From this order W. A. Cooper appeals.

The appellant insists that the great weight of the evidence clearly shows that the defendant Harry J. Cantwell was personally served with summons, prior to the rendition of the judgment by the justice, and that the court therefore erred in holding that the judgment rendered by the justice was void for want of service of process on defendant. The testimony on this issue is conflicting. Thomas Masterson, the special officer appointed to serve the summons issued by the justice, testified that he served the summons on the defendant at the Knights of Columbus Hall, in St. Louis, at 7 o'clock on the morning of May 23, 1922. His testimony was, to some extent, corroborated by the testimony of W. A. Cooper and James B. Reese, to the effect that the defendant had made previous statements inconsistent with his testimony as given on the hearing of the motion. Mr. Reese represented the plaintiff as attorney in procuring the judgment before the justice, and also upon the hearing of this motion in the court below. Mr. Masterson was in the employ of the plaintiff, and filed the demand before the justice, upon which the judgment was rendered, and prepared the summons which he says he served. Mr. Cooper represented the plaintiff in endeavoring to collect the demand on which the judgment was rendered and in procuring the sale of defendant's land under the execution issued on the judgment. The evidence for the defendant tended to show that the land sold under the execution was worth $8,600. Mr. Cooper placed the value of the land at $1,250. The land was incumbered by two deeds of trust amounting to $5,500. These deeds of trust, however, covered other land besides the land sold under the execution. Whether or not they take precedence over the execution sale, we are unable to determine from the record. In any event, it is obvious that Mr. Cooper, as purchaser of the...