Downing v. Still

• Decision Date: 28 February 1869
• Parties: JAMES DOWNING, Appellant, v. ROBERT R. STILL, Administrator of DANIEL THATCHER et al., Respondents.
• Court: Missouri Supreme Court

43 Mo. 309

JAMES DOWNING, Appellant,

v.ROBERT R. STILL, Administrator of DANIEL THATCHER et al., Respondents.

Supreme Court of Missouri.

February Term, 1869.

Appeal from Fourth District Court.

Burgess, for appellant.

I. The order of publication made by the clerk ordered the notice to be published in the “Union Flag,” while the publisher makes affidavit that it was published in the “Weekly Flag,” not the same paper.

II. Notice to the defendants of the suit was inserted in the paper one day before the petition was filed in the office of the clerk of the Circuit Court of Putnam county; consequently, the same was without authority, void, and of no effect. (R. C. 1855, p. 1224, § 13.) In cases of this kind the statute must be strictly pursued. (Drake, Adm'r, v. Hale, 38 Mo. 346.)

III. The action being commenced by publication, it was not commenced in fact until the expiration of the time limited by the order; and as the defendant, Daniel N. Thatcher, died during the publication and before its completion, the proceedings were at an end. (Tiffany v. Smith, N. Y. Pr. 217; Moore v. Thayer, 6 How. Pr. 47; 3 Code Rep. 176.) A judgment rendered without notice is void. (Shaw v. Gregoire, 41 Mo. 414.) An interlocutory judgment was rendered against Thatcher and wife, mortgagors, after the death of Daniel N. Thatcher. This judgment was never set aside, and was not only irregular, but void. (Bollinger v. Chouteau, 20 Mo. 89.)

IV. To render judgment against a person who is dead at the time is an error of fact which may be corrected at any time, by motion in the nature of a writ of error, coram nobis, and can only be done in the court where it occurred. (Calloway v. Nifong, 1 Mo. 159; 5 Comst. Dig. 695; 1 Strange, 606; 2 Bac. Abr. 216, civil ed.; Powell v. Gott, 13 Mo. 458; ex parte Toney, 11 Mo. 663.)

V. After the suit was ordered to be revived against Still, administrator of the estate of Daniel N. Thatcher, deceased, at the March term, 1865, and continued, it was irregular to afterward, at the same time, render an interlocutory judgment against the defendants, Still and Sarah A Thatcher, without first setting aside the order of continuance. (Taff v. Westerman, 39 Mo. 413; Marsh v. Moore, 18 Mo. 477; Stacher v. Cooper Circuit Court, 25 Mo. 401.)

VI. When the death of Daniel N. Thatcher had been suggested of record, the suit could not be revived against Still, his administrator, without the service of a scire facias on him. (R. C. 1855, p. 1273, § 4.) His administrator could not enter his voluntary appearance, or even acknowledge the service of a scire facias. It must be served by an officer. (Fine v. Gray, 19 Mo. 33; Draper v. Bryon, 17 Mo. 71.) As the suit had not been commenced, it could not of course be revived against Daniel N. Thatcher's administrator. There was nothing in court, so far as he was concerned, to revive.

VII. Admitting, for the sake of the argument, that the court had acquired jurisdiction of the original defendant, Daniel N. Thatcher, after his death had been suggested of record, the suit could not have been revived in the name of his administrator without the voluntary appearance of both of the original parties to the suit or the service of a scire facias on them. Neither the plaintiff, W. G. Downing, nor the defendant, Mrs. Thatcher, entered their voluntary appearance, nor was there a scire facias served upon either of them. (R. C. 1855, p. 1276, §§ 32, 33; Ferris, Adm'r, v. Hunt, 18 Mo. 480; Harkness, Adm'r, v. Austin et al., 36 Mo. 471; Fine v. Gray, 19 Mo. 33.)

VIII. The defendants had the whole term at which the interlocutory judgment was rendered to plead to plaintiff's petition, and it was irregular to render a judgment by default against them before the time for pleading had expired. (2 Tidd's Pr. 513; Branstetter v. Rives et al., 34 Mo. 318.) The Revised Code of 1855, p. 1290, § 26, allows three years to a party in which to move to set aside a judgment of a court of record for irregularity. (Branstetter v. Rives et al., 34 Mo. 318; Dysart's Adm'r v. Austin, 36 Mo. 47.)

IX. The judgment in this cause should be set aside, because procured by fraud and without the knowledge or consent of plaintiff or his attorney. “The setting aside of judgments, as well in the case where they were procured by the misconduct of the plaintiffs as where they were obtained by the unauthorized appearance of strangers, rests on the ground of fraud--such practice being regarded by courts as fraudulent, whatever might have been the original intention of the party;” and it may be set aside on motion. This is the proper remedy, and not by bill in equity (Truett v. Wainwright, 4 Gilm., Ill., 418; Critchfield v. Porter, 3 Ohio 518; 3 Ham. 518; Lyon v. Boilvin, 2 Gilm., Ill., 635.) The parties to the suit are not estopped by the recitals in the record in questions of this kind, and evidence was admissible to establish the fact that the suit was prosecuted and judgment obtained and property sold without the knowledge or consent of plaintiff, by the procurement of defendants, in order to cheat and defraud plaintiff out of the mortgaged property. (Critchfield v. Porter, 3 Ohio, 518; Lyon v. Boilvin, 2 Gilm., Ill., 635.) The case of Weber v. Schmusser, 7 Mo. 600, is not in point.

X. The final judgment in the cause is also void and irregular, for the reason that the mortgagors were not summoned, but notified by publication, and did not appear to the action, and the judgment rendered against them is a general judgment, and not a judgment against the mortgaged property. (Smith v. McCutchen, Garn., 38 Mo. 417.) Besides, the purchaser acquired no title by virtue of his purchase, as only the equity of redemption of the administrator was sold, or adjudged to be sold, when in fact he had no equity of redemption and no interest in or to the mortgaged property. A judgment, it is true, may be irregular and not void; but can it be void without being irregular? (Tiffany v. Smith, 2 N. Y. Prac. 6.) There is no principle of law better settled than that a plaintiff may obtain a reversal of his own judgment, for irregularities which may have intervened in the court below, in order that he may commence another suit and obtain a regular and valid judgment, as well as when errors have been committed against him. (Capron v. Van Noorden, 2 Cranch, 126; Teal v. Russell, 2 Scam., Ill., 321; Johnston v. Bibb, 3 Burr. 772; 2 Tidd's Pr. 1134; Jones v. Wright et al., 4 Scam., Ill., 388; Amy Davidson's Adm'r v. Bond, 12 Ill. 84; Fuller v. Robb, 26 Ill. 246.) Plaintiff alleges in his motion that the mortgaged property which was sold was of the value of $10,000, and that the defendant, Hiram L. Phillips, became the purchaser thereof at the sum of $106. This is of itself sufficient to throw suspicion upon the whole transaction, and the testimony of the witnesses, Hiram L. Phillips and James Spencer, was clearly admissible to establish fraud in procuring the judgment, and the fraudulent combination between the defendants and himself at the sale for the purpose of procuring the property at the sale at a sacrifice. (Lyon v. Boilvin, 2 Gilm., Ill., 635.) And under such circumstances the sale will be set aside on motion. (Wooten v. Heinkle, 20 Mo. 290; Neal v. Stone, 20 Mo. 294.) It is true that the purchasers at the sheriff's sale of the property sold under the execution would not be affected by setting aside the judgment under which they hold unless they are made parties to the proceedings (Coleman v. McAnulty, 16 Mo. 173), but in this case they are made parties.

XI. The judgment, execution, and sale thereunder may be set aside, after the return term of the writ, on motion. (Bank of the State of Missouri v. Bray, 37 Mo. 194; Wooten v. Heinkle, 20 Mo. 290; Neal v. Stone, 20 Mo. 294; Clamorgan v. O'Fallon and Lindell, 10 Mo. 112.) In the last case above cited the judgment was rendered on the 20th day of April, 1820, and a motion was made and entertained by the court to set aside the sale thereunder on the 7th day of June, 1845--twenty-five years after the judgment was rendered, and nineteen years after the execution was issued under which the sale was made. This point was not decided in the case of Nelson v. Brown, 23 Mo. 13; and what the court says in that case in regard to setting aside sheriffs' sales after return term of executions is mere dictum. The rule caveat emptor applies in this case; the purchaser is bound to know that he purchases under a valid judgment, and that the execution which issues thereon corresponds with the same. The execution in this case does not correspond with the judgment, nor does it run against the property in the mortgage, but is a general execution; and, in consequence thereof, nothing passed by the sale thereunder. The sheriff's return shows that he only sold the interest of J. R. Still, administrator in the mortgaged property. He had none to sell. See § 12, p. 1090, R. C. 1855, which expressly requires that the execution shall be a special one, and shall be in conformity with the judgment.

H. M. & A. H. Vories, with Shanklin, for respondents.

The court had no right or power to set aside a judgment two terms after its rendition unless it was for irregularities appearing upon the record, which does not appear in this case. The causes set forth in the motion for setting aside the judgment are causes depending upon penal evidence, and cannot be reverted to to set aside a judgment at a subsequent term after the rendition thereof. (Hill v. The City of St. Louis, 20 Mo. 584; Brewer v. Dinwiddie, 25 Mo. 351; Ashby v. Glasgow, 7 Mo. 320; Morgan Harber et al. v. Pacific Railroad Co., 32 Mo. 423.) As to what constitutes an irregularity in a judgment, see Tidd's Pr. 512; Gen. Stat. 1865, p. 671, § 19.

From the showing made in plaintiff's motion, the judgment had been fully carried into execution. The land had been sold under the execution over twelve months before the filing of the motion. The execution was returned and its vitality gone, and...