Covenant Mut. Life Ins. Co. v. Clover
| Decision Date | 31 October 1865 |
| Citation | 36 Mo. 392 |
| Parties | THE COVENANT MUTUAL LIFE INSURANCE COMPANY, Respondent, v. HENRY A. CLOVER AND FRANCIS H. MANTER, Appellants. |
| Court | Missouri Supreme Court |
Appeal from St. Louis Court of Common Pleas.
Clover, for appellants.
The court below rendered judgment against a party never served with process, to wit, F. H. Manter. This is apparent from an inspection. The judgment is irregular and void, as a whole, it being an entire thing; and being necessarily to be reversed as to one, must be reversed in toto. (Dickinson v. Chrisman, 28 Mo. 135.) No motion or bill of exceptions was necessary under the established practice of this court, the error being of record.
Whittelsey, for respondent.
I. The appellant Clover cannot take advantage of the defect in the judgment, although it may be erroneous, for the reason that the error does not affect him. The defendant cannot reverse a judgment for error unless the error affect such defendant. (Jacqueth v. Jackson, 17 Wend 434; Papin v. Massey, 27 Mo. 445, 453.)
In the case of Pomeroy v. Mellen (31 Mo. 419) and Smith v. Rollins (25 Mo. 410) the defendants not properly served appeared in the court below, and moved the court to set aside the judgment; and their motion being overruled, they appealed. The defendants, affected by the error, took proper advantage of that error, and the judgment being reversed, was reversed as to all.
In this case, no motion to set aside or arrest the judgment was made in the court below either by the defendants Manter or Clover.
II. No exception having been taken to the action of the court below rendering judgment, this court cannot pass upon the question presented by appellant. (R. C. 1855, p. 1300, § 33; Richardson v. George, 34 Mo. 104, 108; 25 Penn. 434; 10 Texas, 116; St. Bt. Thames v. Erskine, 7 Mo. 213; Long v. Story, 13 Mo. 4.)
III. The error does not affect the merits of the action as against appellant. (R. C. 1855, p. 1300, § 34, & note b., and cases there cited.)
Respondent sued Manter as maker and Clover as endorser of a negotiable promissory note. Manter was not served with process, and judgment was rendered against both. Clover appealed to this court, and the only error relied on is, the irregularity in rendering judgment against Manter, when the court had no jurisdiction over him. It is insisted that the judgment is good against Clover, and that he cannot take advantage of the defect as to his co-defendant, because it does not affect him. But this is a judgment at law--an entirety; it is good as to all, or bad as to all; and an entire judgment...
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