Ellis v. Nuckols

• Decision Date: 14 November 1911
• Citation: Ellis v. Nuckols, 237 Mo. 290, 140 S.W. 867 (Mo. 1911)
• Parties: ELLIS v. NUCKOLS et al.
• Court: Missouri Supreme Court

140 S.W. 867

237 Mo. 290

ELLIS v. NUCKOLS et al.

Supreme Court of Missouri, Division No. 2.

November 14, 1911.

1. JUDGMENT (§ 420) — FALSE RETURN OF SERVICE — ACTION TO SET ASIDE — REMEDY.

Where an officer's return of service on a summons, while sufficient on its face, is in fact false, defendant's remedy is by an action on the officer's bond for false return, and not by a suit to set aside a judgment based on such service.

2. JUSTICES OF THE PEACE (§ 119) — PROCESS — SERVICE.

Where a constable's return on a summons issued by a justice showed service less than 10 days before the return day, in violation of Rev. St. 1909, § 7423, such defect was a mere irregularity which did not invalidate a judgment based on such service.

3. JUDGMENT (§ 443) — SUIT TO VACATE.

That a judgment was based on a false return of service did not constitute fraud, accident, or mistake sufficient to sustain a suit in equity to set it aside.

Appeal from Circuit Court, Lincoln County.

Suit by Jefferson S. Ellis against Thomas O. Nuckols and others. Judgment for defendants, and plaintiff appeals. Affirmed.

R. H. Norton and Avery, Young & Woolfolk, for appellant. Wm. A. Dudley and R. L. Sutton, for respondents.

KENNISH, P. J.

This is a suit instituted in the circuit court of Lincoln county to enjoin a levy upon and sale of plaintiff's property under an execution issued on a judgment rendered by a justice of the peace against the plaintiff, and to have said judgment adjudged null and void. A general demurrer to the amended petition was sustained by the circuit court. The plaintiff declined to further plead, and final judgment was rendered against him, from which judgment he appealed to this court.

The facts alleged in the amended petition were, in substance, as follows: That on October 24, 1906, Abraham Duff filed a statement before a justice of the peace to recover damages from Jefferson S. Ellis, the plaintiff in this suit, in the sum of $100, for alleged false and fraudulent representations made by said Ellis to said Duff in the sale of a horse; that on the day said statement was filed a summons was issued by the justice of the peace, returnable on November 5, 1906; that the constable made return of said summons, certifying thereon that he served the same in Lincoln county on October 27, 1906, by reading it to the defendant Ellis; that on November 5, 1906, the cause coming on for trial before the justice of the peace, judgment by default was rendered in favor of said Duff and against said Ellis in the sum of $100; that on January 22, 1907, execution was issued on the judgment and placed in the hands of the constable, one of the defendants in this suit; that when this action was brought the constable was threatening to levy upon and sell plaintiff's property to satisfy said judgment. It is further alleged in the petition that in truth and in fact no summons was ever served upon the plaintiff at any time, notifying him of the institution of said suit before the justice of the peace, and that the return of said summons made by the constable was false and untrue in every particular; that the summons so pretended to be served on the plaintiff showed on its face that it was not served 10 days before the day said cause was set for trial, as required by law, which fact was well known to said Duff through his attorneys; that plaintiff did not learn that there had been a trial of said suit and that a judgment had been rendered against him therein until January 28, 1907, when the defendant constable came to plaintiff's home with the execution issued upon said judgment; that plaintiff had a good and meritorious defense to said complaint of Abraham Duff, and on a trial of said cause would be able to show that no false representations were made to said Duff in the sale of the horse; that plaintiff had no adequate remedy at law for relief against said threatened seizure and sale of his property; that the damages that would accrue from such seizure and sale of his property were such that they were not susceptible of computation; that said constable was wholly insolvent and neither at the time of the pretended service of said summons, nor at any other time, had an official bond as constable; that the signatures of two of the sureties on his pretended official bond were obtained by false and fraudulent representations; that those two sureties were wholly insolvent; that the pretended signatures of two other sureties on said pretended bond were forgeries; that said constable would, unless restrained and enjoined from so doing, levy upon and sell plaintiff's property; and that plaintiff would thereby be deprived of his property without due process of law, in violation of both the state and federal Constitutions.

The only question for decision on this appeal is: Do the facts alleged in the petition, which stand admitted by the demurrer, entitle the appellant to the equitable relief of a decree enjoining the enforcement of the judgment complained of and declaring such judgment null and void?

The authorities are not in accord upon the law involved in the decision of ...