Derossett v. Marsh

• Decision Date: 15 January 1931
• Citation: Derossett v. Marsh, 35 S.W.2d 62, 224 Mo.App. 1095 (Mo. App. 1931)
• Parties: BETTIE DEROSSETT, APPELLANT, v. W. M. MARSH, RESPONDENT
• Court: Missouri Court of Appeals

35 S.W.2d 62

224 Mo.App. 1095

BETTIE DEROSSETT, APPELLANT, v. W. M. MARSH, RESPONDENT

Court of Appeals of Missouri, Springfield

January 15, 1931

Appeal from Polk County Circuit Court.--Hon. C. H. Skinker, Judge.

AFFIRMED.

Judgment affirmed.

Herman Pufahl for appellant.

(1) A statement of account must be filed with the justice of peace.Secs. 2735, 2736, R. S. 1919.The justice must hear the case and hear the proof.Sec. 2825, R. S. 1919.The statement filed in this case with Harry T. West, justice of the peace is not sufficient, does not state a cause of action and does not authorize the rendition of a judgment thereon, and therefore the judgment rendered by the justice is void.Wathen v. Farr,8 Mo. 324;Breshears v Strock,46 Mo. 221;Swartz v. Nicholson,65 Mo 508;Butts v. Phelps,79 Mo. 302;Rosenburg v. Boyd,14 Mo.App. 429;Monks v. Strange,25 Mo.App. 12;Weese v. Brown,28 Mo.App. 521;Nutter v. Houston,32 Mo.App. 451;Lease v. Pacific Express Co.,45 Mo.App. 598;Doggett v. Blanks,70 Mo. 499;McCrory v. Good,74 Mo.App. 425;Moffitt West Drug Co. v. Johnson,80 Mo.App. 428;Rechnitzer v. St. Louis Candy Co.,82 Mo.App. 311;Rechnitzer v. Vogelsang,117 Mo.App. 148.(2) If Harry T. West was and is attorney for Marsh, then he was interested and was of counsel and in that event the judgment was rendered by a justice not authorized to hear or determine the case.And the judgment is even subject to collateral attack.23 Ency. of Law and Procedure, p. 1095;Ex parte Bedard, 106 Mo. 627;15 R. C. L., p. 846;Edwards v. Scharff,279 Mo. 78, 89.(3) Where a court makes a mistake in calculating the interest or the amount for which judgment should be given, equity will relieve against the mistake.Boon et al. v. Miller's Executors,16 Mo. 457, 469;Wilson v. Boughton,50 Mo. 17;Case v. Cunningham,61 Mo. 434;Williams v. Carroll County,167 Mo. 9, 14;State ex rel. Wollman v. Guinotte,282 S.W. 68, 70;Michie v. Grainger,149 Mo.App. 301, 305.(4) Where a court of equity takes jurisdiction of a case, it will make complete disposition of the same, and adjust all the equities arising therein.Keeton v. Sprading,13 Mo. 321;McDaniel v. Lee,37 Mo. 204;Reyburn v. Mitchell,106 Mo. 365;Lackland v. Smith, 5 Mo.App. 153.

T. H. Douglas for respondent.

(1) The statement filed before Harry T. West, justice of peace, was sufficient.The test is: Is the statement sufficient to bar another action on same demand?Weese v. Brown,102 Mo. 299;Butts v. Phelps,90 Mo. 670;Iba v. Railway Co.,45 Mo. 470;Jarrett v. Mohan,142 Mo.App. 29, 32;Walton v. Carlisle,281 S.W. 402, 405;Hammond v. Berkowitz,139 Mo.App. 404;Telephone Co. v. Hope,139 Mo.App. 282;Tanhoff v. Weinberg,239 S.W. 148;Herrick v. Maness,142 Mo.App. 399, 402;Yeager v. McIlroy,162 Mo.App. 590, 593;Lustig v. Cohen,44 Mo.App. 271.If figures given in such connection that the meaning is unmistakable that dollars and cents are meant, it is not necessary that a dollar mark be prefixed to such figures.Steel v. Ancient Order of Pyramids,125 Mo.App. 680, 681.(2) A name is a means of identity.Process served upon a party by the wrong name is well served.Parry v. Woodson,33 Mo. 347;Green v. Strother,212 S.W. 399;Marsala v. Gentry,232 S.W. 1046;45 Corpus Juris, p. 369, footnote 33.A careful search of the Missouri cases reveals the fact that the principal case of Parry v. Woodson,33 Mo. 347, above cited, is followed by all later cases, and states the well-settled rule of law in this State.(3)The Statutes of Limitations is an affirmative defense, and to be taken advantage of, must be pleaded or it will be deemed waived.Statutes of Limitations merely suspend the remedy, but do not extinguish the debt, unless expressly so provided.A debtor may pay the debt although barred by Statutes of Limitations.Such statute must be affirmatively pleaded, except in ejectment.McMerty v. Morrison,62 Mo. 100;Cowan v. Mueller,176 Mo. 192;Trammell v. Adams,2 Mo. 155;Benoist v. Darby,12 Mo. 196;Dorsey v. Watson,14 Mo. 59;Boyce v. Christie,47 Mo. 70;Hearne v. Ry. Co.,53 Mo. 324;Choteau v. Allen,70 Mo. 290;Revelle v. Ry. Co.,74 Mo. 438;Logan v. Barton County,63 Mo. 336;Sanders v. Johnson,287 S.W. 427;Davies v. Keiser,246 S.W. 897, 901;Stevenson v. Smith,189 Mo. 466;Hammett v. Hatten,189 Mo.App. 567, 176 S.W. 1078.Where statement in justice court shows that the action is barred by limitations defendant must plead that defense or move to dismiss.Revelle v. Ry. Co.,74 Mo. 438.(4) For equity to set aside a judgment there must be actual fraud proven in the very procurement of the judgment itself.Fraud must be proven, it is never presumed.To set aside a judgment on ground of fraud, such fraud must be established by clear, strong and cogent evidence, leaving no room for reasonable doubt of its existence.Lieber v. Lieber,239 Mo. 1, 31, and cases therein cited;Brown v. Crawford,183 S.W. 655;Wolf v. Brooks,177 S.W. 337;Elliott v. McCormick et al.,19 S.W.2d 654, 658;Craig v. Bright,213 S.W. 845;National Union Fire Ins. Co. v. Vermillion,19 S.W.2d 776;Truman v. Chilton,197 S.W. 346.Every man has his day in court, not two.Howard v. Scott,225 Mo. 712-13.A person cannot have a judgment set aside because of own fault or negligence, or the negligence of his attorney, or improper advice he may have received from his attorney.Woodmen Accident Co. v. Martin,215 S.W. 775;Acme Roofing Co. v. Johnson et al.,26 S.W.2d 854;Einstein v. Strother,182 S.W. 122;Curtis v. Bell,111 S.W. 131, 131 Mo.App. 245;Mesker v. Cornwell,145 Mo.App. 646;Cantrell v. Johnson,236 Mo. 575, 600.(5) Failure of defendant to appeal from dismissal of his motion to set aside judgment because of fraud, or to appeal from judgment within time allowed by law, precludes him hereafter from bringing a suit in equity to set aside the judgment on ground of fraud.Perkins v. Ry. Co.,143 Mo. 513.A judgment is the most sacred form of obligation known to civilized man.Walther v. Null, 233 Mo. 105, 112.

BAILEY, J. Cox, P. J., and Smith, J., concur.

OPINION

BAILEY, J.

This is a suit in equity to set aside a judgment obtained by defendant against plaintiff and rendered by Harry T. West, a justice of the peace of Polk county, Missouri.On trial in circuit court judgment was for defendant and plaintiff has appealed.

The judgment sought to be set aside was based on an account filed with the justice in words and figures as follows:

"ACCOUNT.

"Mr. and Mrs. Stive Sawyers

"Mrs. John Derossett

"1914

W. M. Marsh

"May

13

Shoes $ 7.25, Corset $ 2.00, Emb $ 3.65,

Suit $ 5.00, Hat .50, Dress $ 2.50

Thread .25, Muslin .63, perc .20,

Table linen $ 1.00, dress $ 1.65, suit

$ 3.75

$ 28.38

Buttons .38, hats $ 2.50

2.88

25

Emb .30, Corset Cover .25

.55

30

Combs .50, baretts .50

1.00

Suit $ 10.00, shoes $ 3.50, shoes $ 3.00,

Shoes $ 3.75, Underwear $ 2.00, shirt

.50, hat $ 1.50

24.25

"June

8

Oil Cloth .60, gingham $ 2.00,

2.60

pants $ 4.00, overalls $ 2.50

6.50

"Sept.

28,

Cr by cash

$ 66.16

20.00

$ 46.16

"Interest from Jan. 1, 1915, to Jan. 1929

89.89

$ 136.05"

One of the grounds alleged for setting aside the judgment is that the justice never acquired jurisdiction because no statement such as is required by law, was ever filed with him.

Appellant has cited a great number of cases in support of this proposition, a review of which is unnecessary.They are all cases arising on appeal from default judgments based on what were held to be insufficient accounts or statements filed before a justice of the peace.In each of said cases there was a clear failure to comply with the statute requiring a plaintiff to file with the justice a statement of the account sued on or of the facts constituting his cause of action.[Sec. 2735, R. S. 1919.]The rule is that if the statement or account filed is sufficiently definite as to advise the opposite party of the nature of the claim and so identifies the subject-matter and cause of action as to bar another action, the statement or account is sufficient.[Harvey v. Lambert,156 Mo.App. 268 270, 137 S.W. 644;Weese v. Brown,102 Mo. 299, 14 S.W. 945.]The statement here involved is defective and would, we think, have been subject to attack on proper motion.But it contains all dates and specifies each article sold.It certainly would bar another action for the same articles sold.Particularly should it be held sufficient under the circumstances of this equitable action to set aside the judgment.It appears from the record that plaintiff in this suit was personally served with process; that she consulted a lawyer in regard to the matter and on his advice refused to appear at the office of the justice on the day the case was set, although she was in the city where the office of the justice was on that day and talked with her lawyer.In other words, plaintiff ignored the summons and failed to raise the defense of the Statute of Limitations, which she might have done, but permitted a default judgment to be entered against her on April 13, 1929.Thereafter, on May 7, 1929, a transcript of the judgment was filed in the office of the circuit clerk of Polk county and a transcript execution was issued for the purposes of levying on plaintiff's property.Plaintiff thereupon filed a motion to quash the execution, setting forth the same facts and circumstances contained in the bill in this case.This motion was overruled July 9, 1929, and no appeal was taken therefrom, but on August 12th, thereafter, the present suit was instituted.Plaintiff has therefore been negligent in this matter in failing to appear in justice court, although duly summoned, and has failed to pursue the legal remedies open to her by appeal from the...