Gentry v. State of Missouri
| Decision Date | 29 March 1929 |
| Docket Number | No. 8174.,8174. |
| Citation | 32 F.2d 159 |
| Parties | GENTRY, Sheriff, et al., v. STATE OF MISSOURI, ex rel. and to Use of BUTLER. |
| Court | U.S. Court of Appeals — Eighth Circuit |
Frank M. Lowe and Henry L. Jost, both of Kansas City, Mo., for plaintiffs in error.
Charles E. Whittaker, of Kansas City, Mo. (I. N. Watson and G. C. Weatherby, both of Kansas City, Mo., on the brief), for defendant in error.
Before VAN VALKENBURGH and BOOTH, Circuit Judges, and MUNGER, District Judge.
This is a writ of error to a judgment rendered in an action against a sheriff on his official bond. The facts leading up to the judgment are substantially as follows: In September, 1910, Jennie M. Butler commenced an action against H. H. Temple in the state circuit court of Jackson county, Mo. The action remained pending until December 3, 1915, when it was dismissed for want of prosecution. During the same term, on December 7, 1915, a motion was filed to reinstate the case. The motion was granted on the same day, and an order entered reinstating the case. On October 6, 1916, the attorneys for defendant Temple formally withdrew of record from the case as such attorneys. On November 12, 1917, an application was filed by plaintiff for the issuance of a commission to take depositions in California on behalf of plaintiff. The commission issued. On February 14, 1918, a notice was posted in the office of the clerk of the circuit court of Jackson county, Mo., that the case would be listed for assignment and for trial on February 25, 1918, and that the court would be asked to set the case for trial at the earliest convenience of the court. On February 25, 1918, an affidavit was sworn to by the attorney for Mrs. Butler, stating that the one-time attorneys for defendant had withdrawn from the case; that the records of the court did not show that any other attorney had been selected; that the affiant had made diligent search to find defendant Temple, but had been unable to find him; that affiant from information believed Temple had not been a resident of the state for several years; that affiant, being unable to serve upon Temple a copy of the notice of request to have the case set for trial, had posted the same in the office of the clerk on February 14, 1918. The notice and the affidavit were filed in the clerk's office March 4, 1918, and on that date the case came on for trial. The defendant made no appearance. Plaintiff waived a jury. The court heard the evidence and found the issues in favor of the plaintiff and against the defendant. Judgment was accordingly entered for the plaintiff in the sum of $12,780.
February 7, 1920, an action was commenced by Mrs. Butler against Mr. Temple in the state district court of Wichita county, Tex., upon the judgment which had been obtained in Missouri. Personal service was made upon Mr. Temple February 8, 1920. The complaint in said action set out the judgment obtained in Missouri, and also alleged certain facts by virtue of which plaintiff claimed an equitable lien upon certain described lands in Texas alleged to be owned by Mr. Temple. The complaint prayed for judgment against Temple and for the foreclosure of the lien. Notice of the pendency of the action and of the claim of lien was recorded in the office of the clerk of the county court. Defendant Temple filed answer to the complaint March 2, 1920.
Meanwhile, on February 21, 1920, Mr. Temple commenced an action against Mrs. Butler in the circuit court of Jackson county, Mo., the purpose of which was to set aside the judgment obtained by Mrs. Butler against him on March 4, 1918. The grounds alleged were that the motion for reinstatement of the case of Butler against Temple in December, 1915, was filed and heard without any notice to defendant Temple; that he was not within the jurisdiction, nor had he been served with process at the time the judgment was entered against him, March 4, 1918. The summons in this action of Temple against Butler was given to the sheriff, Overton H. Gentry, Jr., for service. He made return thereon as follows:
In fact, no service was made on the defendant named, Jennie M. Butler, but on an entirely different person. However, the case was brought on for trial, and on March 30, 1920, no appearance being made by Mrs. Butler, judgment was entered canceling and setting aside the judgment of March 4, 1918.
Thereafter, this cancellation judgment was set up by Temple by plea in abatement in the action brought by Mrs. Butler against him in Texas. The record does not show in what way this plea in abatement was met by Mrs. Butler in the suit in the Texas court. The record does show, however, that there was a hearing before the Texas court on January 31, 1921, on the plea in abatement; and that a judgment was entered on that day containing the following:
Thereafter, the present action was commenced by Mrs. Butler against the sheriff on his official bond. The complaint alleged in substance the facts above recited; and further alleged that plaintiff's judgment against Temple was set aside, and her action in Wichita county, Tex., was abated and dismissed, and the lands of Temple released — all as a direct result of the false return of service by defendant sheriff in the suit brought by Temple against her in the circuit court of Jackson county, Mo.
The defendants answered, and on the issues joined the case was tried to the court and a jury, resulting in a verdict for plaintiff.
The first main point relied upon by plaintiffs in error is that the false return of the sheriff did not and could not cause any damage to Mrs. Butler, for the reason that she had no valid judgment against Temple. The question is thus raised, Was the judgment entered March 4, 1918, in the suit by Mrs. Butler against Temple valid?
The suit was commenced in September, 1910. It was dismissed for want of prosecution December 3, 1915. The order and judgment of dismissal was set aside and the case reinstated during the same term, December 7, 1915, on motion filed that same day.
There is a statute in Missouri providing as follows: Section 1268, Rev. Stat. of Mo. 1919.
There is also a rule of court (rule 29) of the circuit court of Jackson county, providing that motions shall not be called for hearing on a day more than 10 or less than 3 days after the filing of such motion.
The contention of plaintiffs in error is that in the reinstatement of the case neither of the provisions above quoted was observed, and that consequently the case was never in fact reinstated; and the case never having been reinstated, the judgment of March 4, 1918, was a nullity.
We think the contention cannot be sustained. It is a general rule that orders and judgments made by a court may during the same term be modified or set aside in the court's discretion. 34 C. J. 207, § 436; 17 Am. & Eng. Encyc. of Law, 813; 1 Freeman on Judgments (5th Ed.) 375 et seq., § 194 et seq.; Bronson v. Schulten, 104 U. S. 410, 26 L. Ed. 797; Basset v. United States, 9 Wall. 38, 19 L. Ed. 548; Ætna Life Ins. Co. v. Board of County Commrs., 79 F. 575 (C. C. A. 8); Mahler v. Animarium Co., 129 F. 897, 900 (C. C. A. 8); Pennsylvania R. R. v. Montgomery (C. C. A.) 6 F.(2d) 386.
This rule is recognized in the state courts of Missouri. Rottmann v. Schmucker, 94 Mo. 139, 7 S. W. 117; Scott v. Smith, 133 Mo. 618, 34 S. W. 864; Reid v. Moulton (Mo. Sup.) 210 S. W. 34; Boegemann v. Bracey, 315 Mo. 437, 285 S. W. 992.
There is no proof in the record that Mr. Temple and his attorneys did not have notice of the motion to reinstate. There is no proof in the record that Mr. Temple or his attorneys were not present in the court at the time the motion to reinstate was heard, and consented to the hearing.
The Missouri courts hold that mere silence on the part of the record as to the existence of a fact even necessary to the jurisdiction of the court is not to be taken as proof that the fact did not exist. Huxley v. Harrold, 62 Mo. 516, 523; Smoot v. Judd, 184 Mo. 508, 538, 83 S. W. 481; State v. Fulton, 152 Mo. App. 345, 349, 133 S. W. 95; Gill v. W. O. W., 209 Mo. App. 63, 71, 236 S. W. 1073. This is in accord with the general rule. 34 C. J. § 841, p. 537 et seq.; Applegate v. Lexington, 117 U. S. 255, 269, 6 S. Ct. 742, 29 L. Ed. 892.
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