Clark v. Holliday

• Decision Date: 31 January 1846
• Citation: 9 Mo. 711
• Parties: CLARK v. HOLLIDAY.
• Court: Missouri Supreme Court

9 Mo. 711

CLARK

v.HOLLIDAY.

Supreme Court of Missouri.

January Term, 1846.

ERROR TO CALLAWAY CIRCUIT COURT.

JONES, for Plaintiff. 1. From all that appears upon the record, J. Barton Bates had no authority either to practice as an attorney at law, or to prosecute the said notice for said defendant. See 3 Monroe R. 192; 6 Mo. R, 439; Theobold on Principal and Agent, 244, 256. 2. The judgment being general was not therefore void, and if not void, it was both binding and operative until reversed upon appeal or by writ of error. If the court have jurisdiction of the subject-matter, and the party defendant have either actual or constructive notice of the proceeding against him, the judgment cannot be void, whatever the form thereof may be. I presume no rule of law is better settled than this. See the following authorities: 4 Peters' R. 471-2; 3 Scammon's R. 106, 108; 2 Starkie on Evidence, 1278; Rev. Stat. of 1835, p. 469, § 7, 13th clause; 1 Bibb R. 346; 3 Monroe R. 195. 3. If the judgment is not void, then the execution being in due form of law, and substantially following it in all necessary particulars, was erroneously quashed. See Rev. Stat. 1835, p. 82, § 51, 1st and 2nd clauses.

GAMBLE & BATES, for Defendant. For the defendant. Holliday, it is insisted, that it was wholly irregular and illegal to issue a general execution on that judgment record. The proceedings were under the Rev. Code of 1835, and that law expressly forbids such execution; title Attachment, page 77, §§ 10, 11.

MCBRIDE, J.

Isaac Clark commenced in the Callaway Circuit Court, to the October term, 1843, his action against Marshall Holliday. The attachment was levied on the real estate of the defendant, and as to the defendant, returned “not found in Callaway county.” At the return term, the defendant not appearing to the action, the plaintiff obtained an order of publication against him; and at the succeeding April term, 1844, the defendant still failing to enter his appearance, and publication having been made against him, the court entered a judgment of default, and awarded a writ of inquiry returnable to the next term of the court. At the October term, 1844, the damages of the plaintiff were assessed by a jury, and a general judgment rendered thereon. On this judgment an execution was issued to the sheriff of Callaway county, commanding him to make the damages and costs by a sale of the real estate attached. A sale was made which produced but a small fraction of the damages and costs, and the execution returned not satisfied as to the residue. Afterwards, on the 8th of May, 1845, a second execution was issued, directed to the sheriff of St. Louis county, and which was returned for him to the October term, 1845, indorsed ““satisfied,” setting forth the manner, and further stating that since the money came to his hands it had been attached, and he summoned as garnishee by virtue of process emanating from the Court of Commen Pleas for St. Louis county, at the suit of the plaintiff against the defendant, and praying the order of the court as to what disposition he shall make of the money. At the return term of the last execution, the defendant by his attorney appeared in court, and filed his motion to quash the execution, assigning as reasons therefor, 1st. Because said writ was issued improvidently and by mistake. 2nd. Said writ was issued oppressively and fraudulently. 3rd. Said writ was issued unlawfully and without any warrant in law, being founded on an ex-parte judgment, rendered in a suit brought by attachment, in which said Holliday was not served with process, and did not appear by attorney.” The court sustained the motion and quashed the writ; to which the plaintiff excepted and has brought the case to this court by writ of error.

The proceedings and judgment in this cause were had under the provisions of “An act to provide for the Recovery of...