Germanese v. Champlin
| Decision Date | 06 July 1976 |
| Docket Number | No. 36792,36792 |
| Citation | 540 S.W.2d 109 |
| Parties | Vincent J. GERMANESE and Arthur Sitton, a co-partnership d/b/a Germanese & Sitton Public Accountants, Plaintiffs-Respondents, v. Melvin N. CHAMPLIN and Geneva J. Champlin, his wife, Defendants-Appellants. . Louis District, Division One |
| Court | Missouri Court of Appeals |
Daniel H. LeGear, Jr., Clayton, for defendants-appellants.
Amelung, Wulff & Willenbrock, Stephen D. Hoyne, St. Louis, for plaintiffs-respondents.
Melvin N. Champlin and Geneva J. Champlin appeal from the judgment of the Circuit Court of St. Louis County overruling and dismissing their motion to set aside a default judgment entered against them by that court.
The pertinent facts leading up to the original default judgment follow. Plaintiffs Vincent J. Germanese and Arthur Sitton are certified public accountants. They filed suit in the circuit court of St. Louis County on August 14, 1971, seeking to obtain a judgment for accounting services they allegedly rendered defendants. The petition asserted that the defendants, who were then residing in Nevada, were subject to the jurisdiction of the circuit court under Missouri's 'long arm' service statute, § 506.500, RSMo.1969, because defendants had contracted with plaintiffs in Missouri to do the accounting services and because the transaction of business for the accounting services was rendered in Missouri.
A summons for personal service outside Missouri on both defendants was issued on August 18, 1971. The sheriff of Clark County, Nevada made a return on October 6, 1971. The return and accompanying affidavit of service was signed by Daryl L. Murray, Deputy Sheriff, and stated that Geneva J. Champlin was personally served at 1212 South 8th Place, Las Vegas, Nevada, on August 26, 1971. The summons was returned unexecuted as to defendant Melvin N. Champlin. An alias summons on Melvin N. Champlin was then issued on February 24, 1972. The accompanying affidavit of service was signed by B. W. Perkins, Deputy Sheriff, stating that Melvin N. Champlin was personally served on March 8, 1972 at 1212 South 8th Place, Las Vegas, Nevada.
On June 24, 1972 the clerk of the circuit court received a letter from Melvin N. Champlin which referred to the case by court number. He asked for a delay in placing the case on the docket until after the 1st of August, 1972 because of his work as project manager for a large construction company. He indicated that he could not appear to answer the petition before this date because it would jeopardize his position. Default and inquiry was granted as to defendant Geneva J. Champlin on June 26, 1972 and default and inquiry was granted as to defendant Melvin N. Champlin on August 15, 1972. The last order set the case as to both defendants on August 29, 1972. On this last date, plaintiff Vincent Germanese appeared in court and testified the balance due his firm on account for services rendered to the defendants was $4,425.50. Judgment was entered for this sum together with $563.26 interest. Nothing further was heard from the defendants until after plaintiffs attempted to register this judgment in Kansas on March 14, 1973. Then, on May 3, 1973, defendants filed a motion to set aside the default judgment reciting that they had not been personally served in the State of Nevada, nor had they appeared in the action. They further stated that they had a good defense to the action in that the plaintiffs were alleged to have negligently rendered the accounting services to defendants' damage. Accompanying the motion was a joint affidavit of the defendants attesting that neither defendant was personally served. Geneva Champlin averred that she never saw a copy of the summons and petition allegedly served upon her August 26, 1971. Melvin N. Champlin stated that he was not personally served on March 8, 1972, but that a copy of the summons and petition was left with a baby-sitter at his residence on the date in question. Also filed at a later time was an affidavit of Beverly W. Perkins, Deputy Sheriff, stating that the sheriff's department received the summons with petition on the 23rd of August, 1971, with instructions to serve the papers upon Melvin N. Champlin, defendant, and that service was effected by 'leaving a copy of said Summons and Petition with an unidentified person of suitable age, residing at the residence of Defendant.'
Plaintiffs filed a motion to dismiss the defendants' motion to set aside the default judgment on August 26, 1974. The matter was called on December 12, 1974, and submitted to the court after argument. On December 30, 1974 the court overruled and dismissed defendants' motion to set aside the default judgment.
Since the motion to set aside the judgment depended for its validity on facts outside the record, we treat it as though it were an application for a writ of coram nobis. Casper v. Lee, 362 Mo. 927, 245 S.W.2d 132, 141(28) (banc 1952); Simms v. Thompson, 291 Mo. 493, 236 S.W. 876, 880(1--4) (banc 1922).
The Missouri 'long arm' statute authorizes extraterritorial service of process to subject a non-resident to the jurisdiction of the courts in this state in any cause of action arising out of certain enumerated acts set out in § 506.500, supra. The method of service required at the time that this case was filed and service of process had, was personal service upon a defendant through a court of record or court officer of the place where defendant could be served. § 506.510, RSMo.1969. 1
Both here and in the court below defendants have contended that the circuit court should have considered the affidavits setting forth facts which impeached the Nevada sheriff's return of service; and further, that it should have inquired as to whether it had authority to render a personal judgment against the defendants when there was no personal service upon them. Instead of deciding the question on that basis, the court decided that the verity rule as set forth in Underwood v. Underwood, 463 S.W.2d 915, 917(1) (Mo.1971) applied and the return of the Nevada sheriff on service of process could not be questioned. It is true that on service in Missouri by a sheriff within his venue, a return of service regular on its face cannot be questioned by collateral attack. If the return is in fact false, the defendants' remedy is an action against the sheriff on his bond. This is true even if the process served by a sheriff in Missouri comes from another state if that state authorizes service in the manner approved by Missouri. O'Neill v. Winchester, 505 S.W.2d 135, 137(3) (Mo.App.1974). The basis for the verity rule is that the sheriff is a sworn officer of this state to whom the law gives credence....
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