Fears v. Riley

• Citation: 49 S.W. 836,148 Mo. 49
• Parties: Fears, Appellant, v. Riley et al
• Decision Date: 15 February 1899
• Court: Missouri Supreme Court

49 S.W. 836

148 Mo. 49

Fears, Appellant, v. Riley et al

Supreme Court of Missouri, First Division

February 15, 1899 ^[*]

Appeal from Randolph Circuit Court. -- Hon. John A. Hockaday, Judge.

Affirmed.

Harry L. Strohm, W. G. Marshall, R. F. Walker and Martin & Terrill for appellant.

(1) On the merits the judgment of the court below was wrong. First. The defendant is entitled to equitable relief, because the judgment sought to be enjoined is without foundation, is unjust, inequitable, unconscionable and void. Fears, against whom judgment was rendered, was not a party, directly or indirectly, to the publication of the alleged libel; was unknown to Laura Riley, and she to him. The direct and uncontradicted testimony is that Fears had never been connected with the newspaper publishing the libel, either as printer, publisher, editor, proprietor, manager, circulator correspondent or owner; that he never furnished any news or information for publication in said newspaper; that he neither saw the libelous article sued on, nor heard of its publication until after the attempt to bring suit against him thereon. Where the record does not show positively what was passed upon at a former trial parol evidence may be resorted to. Spaulding v. Conway, 51 Mo. 51; Hickerson v Mexico, 58 Mo. 61; State v. Alsup, 91 Mo. 172; Snodgrass v. Moore, 20 Mo.App. 232; Graham v Ringo, 67 Mo. 324. Second. The judgment herein complained of was procured by an imposition practiced on the court. The testimony of Laura Riley proves that in fact she was, at the time of bringing suit, a resident of the city of St. Louis. Third. Laveene and Preston were taken to Audrain county by the criminal process of the State, at the instance of Laura Riley, and then and there subjected to service of process in said civil suit. Criminal process of the State can not be used to take a person from one county to another, so as to subject him to process. Byler v. Jones, 79 Mo. 261; Christianson v. Williams, 111 Mo. 429. Fears can not be prejudiced by acts of either of these two defendants in appearing and answering. A principle devoid of reason would be established, if a defendant to a suit, by his act, could waive constitutional or statute rights of his codefendants. (2) Fears, if liable with the defendants, Lee, Laveene and Preston, should have been summoned in Audrain county, where he had a right under the then existing law (R. S. 1889, section 2262, before the amendment of 1895), to have the case as to him tried regardless of any action of his codefendants. Holland v. Johnson, 80 Mo. 34; Young v. Young, 88 Pa. St. 422; R. S. 1889, sec. 2009. (3) Before the defendants, Laveene and Preston, were entitled to their change of venue it was necessary that all pleadings should have been filed and the issues made up. R. S. 1889, sec. 2264; Henderson v. Henderson, 55 Mo. 534; State v. Daniels, 66 Mo. 192. (4) The judgment herein complained of against said Fears is void, in that it was improvidently and prematurely rendered. At the time of its rendition, there had been filed in said cause, and of record therein, and undetermined, a motion requiring the plaintiff to give security for costs of said action. Steamboat, etc., v. Jenkins, 9 Mo. 643; R. S. 1889, sec. 2031. (5) These unusually frequent continuances, without any notice to the said Fears, reasonably give color to a charge of a fraudulent concurrence against him. A judgment rendered against a party who had no notice is utterly void. Smith v. Ross, 7 Mo. 463; Roach v. Burnes, 33 Mo. 319; Cloud v. Inhabitants, 86 Mo. 357; Hope v. Blair, 105 Mo. 85; Newton v. Newton, 32 Mo.App. 162; Bobb v. Graham, 4 Mo. 222. (6) If a summons is made returnable in less time than fixed by law, a judgment by default therein is void. Bobb v. Graham, 4 Mo. 222; Sanders v. Rains, 10 Mo. 770; Williams v. Bower, 26 Mo. 601; Howard v. Clark, 43 Mo. 344. (7) Every officer to whom any writ shall be delivered to be executed shall make return thereof in writing. R. S. 1889, sec. 2020. The return is essential to process. Stewart v. Stringer, 41 Mo. 400; Jeffries v. Wright, 51 Mo. 213; Magrew v. Foster, 54 Mo. 258; Phillips v. Evans, 64 Mo. 17; Brown v. Langlois, 70 Mo. 226; Decker v. Armstrong, 87 Mo. 316; State ex rel. v. Finn, 100 Mo. 429; Laney v. Garbee, 105 Mo. 355; Williams v. Monroe, 125 Mo. 574. (8) Where a second summons is called for, it takes the place of the original process. Huff v. Shepard, 58 Mo. 242. The subsequent action of the plaintiff in said suit, at a subsequent term of court, wherein she ignored the orders of the court for an alias summons, and sought to give vitality to the corpse of the discarded summons, was unauthorized and void. If she had a legal right so to do, it would have been necessary first to give the defendant notice of that intention before a default could be entered and this she did not do. Brown v. King, 39 Mo. 380; Currin v. Ross, 2 Mo. 203.

A. H. Waller, F. P. Wiley and Geo. S. Grover for respondents.

(1) The return of the sheriff of St. Louis shows personal service of a copy of the writ and amended petition in said damage suit on Fears. This return is in strict conformity with the requirements of the statute. Hence it follows that the court had jurisdiction, both of the subject matter and of the person of Fears in said libel suit, and the judgment by default, rendered therein, can not be attacked collaterally as is here attempted by an injunction to stay execution. 1 Black on Judgments, secs. 83 and 87; Leonard v. Sparks, 117 Mo. 107; Thompson v. Railroad, 110 Mo. 151; Howland v. Railroad, 134 Mo. 479. (2) The change of venue taken by defendants was regular in every respect and conferred upon the circuit court of Randolph county complete jurisdiction of the cause. The amendment to plaintiff's petition, making Fears a party defendant, made in said Randolph court, was legally and properly made and allowed. Hughes v. McDivitt, 102 Mo. 83; Butler v. Lawson, 72 Mo. 246; R. S. 1889, secs. 2098, 2099, 2266, 2271 and 1995. (3) Where the petition states a cause of action, and due and proper service of notice upon a defendant appears upon the record, a judgment by default may be legally rendered, and such judgment, so long as it stands unreversed, can not be impeached in any collateral proceeding, on account of errors, or irregularities. Black on Judgments, secs. 261, 263 and 245; R. S. 1889, secs. 5497 and 1313. And a proceeding by injunction to restrain the execution of a judgment is a collateral attack on such judgment. 1 Black on Judgments, sec. 253. (4) The jurisdiction of equity to stay proceedings at law after judgment is not a favorite one. The general principle underlying the jurisdiction is that it must be against conscience to execute the judgment, and it must clearly appear that the person aggrieved could not avail himself at law, of the equities relied upon to enjoin the judgment, or if he was in a position to avail himself of such equities in defense of the action at law, that he was prevented from so doing by accident, mistake or surprise, or by fraud of the adverse party unmixed with laches or negligence of his own. 1 High on Injunction (2 Ed.), secs. 114 and 87; Davis v. Staples, 45 Mo. 570; George v. Tutt, 36 Mo. 141; Murphy v. DeFrance, 101 Mo. 151. The fraud, however, for which a judgment will be enjoined must be in the procurement of the judgment. Payne v. O'Shea, 84 Mo. 133; Murphy v. DeFrance, 101 Mo. 151. (5) After having been legally served by the sheriff with process, and having notice thus given, that this libel suit was pending against him, Fears stands convicted by his own evidence, and by the evidence of his attorney, of inattention and negligence, in not attempting to make the defense he now insists on. He was deceived and misled by no one, unless by his own attorney, and exercised no diligence whatever. 1 High on Injunction (2 Ed.), secs. 112 and 113. And the negligence, mistake, or incompetency of the attorney is deemed to be that of the client. Ketchum v. Harlowe, 84 Mo. 225; Biebinger v. Taylor, 64 Mo. 63. (6) Appellant's counsel contends strenuously that Fears was not a party directly, or indirectly, to the publication of the alleged libel, and had no interest whatever in the paper that published it. This is a defense involving an issue of fact that should have been pleaded and tried in the libel suit. What the outcome may have been upon issue joined and evidence heard on both sides, is a matter of conjecture now. High on Injunction (2 Ed.), secs. 167, 170, 171 and 173. (7) The residence of Fears was also a matter of inquiry and defense at the time of said trial. Besides the law conclusively presumes that the evidence heard by the court at said trial tended to prove, and did prove, every fact necessary to warrant the court in so finding and rendering said judgment, and said judgment and the recitals thereof can not be assailed in this proceeding by collateral attack, based on oral testimony. (8) The undisputed evidence shows that Laura Riley resided with her father and mother in Mexico, Missouri, prior to, at the time, and since institution of said libel suit, and that she never resided anywhere else. (9) No objection was taken by either Preston or Laveene, or Fears in the trial court, either by demurrer or answer, that the trial court had no jurisdiction of the person of any of the defendants, served with process, and such objection is, therefore, deemed waived. R. S. 1889, secs. 2047 and 541; January v. Rice, 33 Mo. 409; Moore v. Railroad, 51 Mo.App. 507; Davis v. Railroad, 126 Mo. 75; Real Estate Co. v. Lindell, 133 Mo. 389. (10) The judgment was not prematurely rendered, in that a bond for costs was pending, and not disposed of. No such point was raised in the trial court in this proceeding, nor...