Goldie Const. Co. v. Rich Const. Co.

• Decision Date: 04 April 1905
• Citation: 112 Mo. App. 147,86 S.W. 587
• Parties: GOLDIE CONST. CO. v. RICH CONST. CO. et al.
• Court: Missouri Court of Appeals

86 S.W. 587

112 Mo. App. 147

GOLDIE CONST. CO. v. RICH CONST. CO. et al.

St. Louis Court of Appeals. Missouri.

April 4, 1905.

JUSTICE'S JUDGMENT — VALIDITY — JURISDICTION—INJUNCTION—PROOF OF MERITS.

1. Where a justice's judgment against complainant was entered on a stipulation signed by an attorney purporting to appear for it, such judgment was valid on its face, and complainant was entitled to maintain a bill to restrain the enforcement thereof on the ground that it was void in fact.

2. Complainant, though no party to a purchase of piling by L., was jointly sued with him before a justice, but was not served with process. L., without authority, employed an attorney to appear for all the defendants; and, under a stipulation signed by him, judgment was rendered against complainant for the entire debt without its knowledge or consent. In a bill to restrain collection of such judgment, it was shown that when L. purchased the piling he was a subcontractor of complainant, but that the latter, when notified of the purchase by the sellers, denied liability, and notified them that the debt was that of L. exclusively. Complainant offered to further show a defense on the merits, which the court declined. Held, that a decree restraining execution on such judgment was not erroneous for complainant's failure to show a defense on the merits.

Appeal from St. Louis Circuit Court; Danl. D. Fisher, Judge.

Bill by the Goldie Construction Company against the Rich Construction Company and another. From a decree in favor of plaintiff, defendants appeal. Affirmed.

Jacob Oppenheimer, for appellants. Geo. T. Weitzel, for respondent.

Opinion.

GOODE, J.

The petition in this case is in the nature of a bill in equity for the purpose of procuring an injunction against an execution issued on a judgment rendered by a justice of the peace. The Goldie and Rich Construction Companies are both Missouri business corporations, and Charles Mohrstadt is the constable to whom the execution was issued. In April, 1902, the Rich Construction Company filed an account before Robert Walker, a justice of the peace in the city of St. Louis, against Wm. Goldie & Sons Company, H. P. Lee, and the Hill-O'Meara Construction Company, for the price of 17 piles, at $5 each, or $85. Wm. Goldie & Sons Company is an Illinois corporation, with no office in the state of Missouri. It is affiliated with the Goldie Construction Company, and the same individuals fill part of the offices in each company. On the filing of the account a summons was issued for the several defendants, and service obtained on Lee and the Hill-O'Meara Construction Company, but the Wm. Goldie & Sons Company was returned "Not found." On April 19th, H. P. Lee, assuming to act in behalf of himself and the other defendants, filed an affidavit for change of venue, whereupon Justice Walker granted a change of venue to Frank A. Cline, another justice of the peace in St. Louis. Justice Cline issued an alias summons for the Wm. Goldie & Sons Company, which was returned non est by the constable. Afterwards notice of the change of venue was issued by Justice Cline. Service of the notice was accepted by Taylor R. Young as attorney for all the defendants. On May 13th a stipulation was filed with Justice Cline providing that a judgment should be entered for $60 against the Wm. Goldie & Sons Company, a corporation, and the suit dismissed as to the other defendants, H. P. Lee and the Hill-O'Meara Construction Company. Said stipulation is as follows:

"In Justice Court, before F. A. Cline, a Justice of the Peace. Rich Construction Company, a Corporation, v. William Goldie Sons Company, a Corporation, H. P. Lee, Hill-O'Meara Construction Company, a Corporation. Come now the defendants by their attorneys, and stipulate that judgment may be entered for the sum of sixty ($60) dollars and costs against William Goldie Sons Company, a corporation, and that said defendants H. P. Lee and Hill-O'Meara Construction Company be dismissed from this cause, to which plaintiff, by his attorney, consents. May 13, 1902. Taylor R. Young, Attorney for Defendants Goldie Sons Company and H. P. Lee. Collins & Chappell, Attorneys for Hill-O'Meara Construction Company. Rich Construction Company, by Jacob Oppenheimer, Its Attorney."

On the same day a second stipulation was filed, which reads:

"Rich Construction Company, Plaintiff, v. Goldie Construction Company et al., Defendants. Before F. A. Cline, Justice of the Peace within and for the Ninth District, City of St. Louis, Missouri. Comes now the defendant Goldie Construction Company, a corporation, one of the defendants in the above-entitled cause, by its attorney of record, and stipulates that judgment may be had against it and in favor of the above-named plaintiff for the sum of sixty dollars ($60) and all costs, to which the plaintiff hereby consents, and agrees that the other named defendants in said action may be dismissed with their costs. Dated May 13, 1902. By Goldie Construction Company, Taylor R. Young, Its Attorney. Rich Construction Company, by Jacob Oppenheimer, Its Attorney."

Pursuant to the last stipulation, Justice Cline entered judgment against the Goldie Construction Company for $60 and costs of suit, and issued an execution, which was placed in the hands of the appellant Charles E. Mohrstadt, constable of the district. Afterwards the Goldie Construction Company sued out a temporary restraining order against the service of the execution. On the trial in the circuit court the injunction was made perpetual. The petition contained the substance of the facts which appear in the above statement, with allegations that neither Wm. Goldie & Sons Company nor the Goldie Construction Company was ever served with process; that H. P. Lee assumed to act for said defendants without any authority whatever, as did also the attorney, Taylor R. Young; that Lee had no connection with either the Wm. Goldie & Sons Company or the Goldie Construction Company, and was not in their employ or service; that he filed the affidavit for change of venue from Justice Walker, on behalf of Wm. Goldie & Sons Company, on his own motion, and without authority; that the two stipulations signed by Taylor R. Young (the first authorizing judgment against Wm. Goldie & Sons Company, and the second against the Goldie Construction Company) were signed without authority, said Young never having been employed as attorney for either of said companies; that the Rich Construction Company, Taylor R. Young, H. P. Lee, and the Hill-O'Meara Construction Company entered into a corrupt, unlawful, and fraudulent combination to defraud the Goldie Construction Company by filing said stipulations; that the account for $85 filed by the Rich Construction Company with Justice Walker was based on a transaction that took place between said Rich Construction Company and H. P. Lee, to which transaction the Goldie Construction Company was an entire stranger, and in no way responsible for any obligation growing out of it; that the Goldie Construction Company has a good defense on the merits of the action on said account. The prayer was that the Rich Construction Company and Charles E. Mohrstadt, constable, be enjoined from enforcing said execution by levy. The petition was verified by the affidavit of Wm. Goldie, Jr., who is president of the Goldie Construction Company. The answer made some formal admissions, and denied every other allegation of the petition.

The Goldie Construction Company had,...