Holland v. Hunton

• Decision Date: 31 January 1852
• Court: Missouri Supreme Court
• Parties: HOLLAND v. HUNTON & WHITE.

15 Mo. 475

HOLLAND

v.HUNTON & WHITE.

Supreme Court of Missouri.

January Term, 1852.

APPEAL FROM HICKORY CIRCUIT COURT.

WINSTON, for Appellant. 1. The appellant was not served personally twenty days before the return of the writ, and therefore no judgment could be properly rendered against him at the return term of the court, this being a suit on a note. See as to this, Practice in Courts of Justice, art. 5, § 6. 2. The suit was brought in Hickory county, against the appellant who was a resident of Benton county, where process was served upon him, and it does not appear from the record, that the other defendant (below), White, was a resident of Hickory county, or that process was served upon him in that county, which was necessary in order to give the court jurisdiction. As to this point I refer the court to art. 4, § 1 of the act entitled Practice in Courts of Justice. 3. There is a mis-description of the note sued upon, the petition stating it to be a note executed by the appellant and White, as makers, when it appears that the appellant alone was the maker thereof.

WRIGHT, for Respondent. 1. In a case like the present, where there has been no appearance or answer, judgment may be rendered at the return term, for want of an answer upon fifteen days' notice. Twenty days' personal service is only contemplated in contested cases--such I think is the universal practice. 2. Even if the court erred in rendering the judgment at the return term, an opportunity should first have been given the court below to correct such error, and upon the refusal of that court to do so, exceptions should have been taken--nothing of the kind was done. Art. 30, § 8. 3. Defendant, White, does not complain. He shows himself satisfied with the judgment. He has not joined in the appeal, and even if there was an irregularity in the service of the writ on him, Hunton has no right to complain. The service on White was good, but if it were not, he has the right to waive it. In support of 1st point I refer to the new Code of Practice. Article 12, provides for “judgment for failure to answer;” section 2nd of that article says: “If the action be founded on a bond, bill or note for money, and there be no answer as hereinbefore required, the clerk may, under the direction of the court, enter judgment for the amount which shall appear to be due.” And in section 2nd, article 17, it is declared that, “in cases provided for in article 12, judgments shall be given at the return term of the summons, unless the court for good cause, shall continue the cases.” Such is the positive statute law, pursuant to which the judgment complained of was rightly rendered.

RYLAND, J.

The plaintiff brought his civil action in the Hickory Circuit Court against the defendants, Hunton & White, upon a promissory note signed by Hunton and indorsed by White; the note was originally payable to R. P. Benson and by her assigned to the plaintiff. The petition avers the liability of White, as the indorser for Hunton. The clerk of Hickory Circuit Court issued a summons to the sheriff of Hickory county against White, and to the sheriff of Benton county he issued a summons with a counterpart of the petition and writ against Hunton. The sheriff of Hickory served the summons on White on the 1st day of March, 1851, by reading it to him; and the sheriff of Benton county on the 8th of March, 1851, served the counterpart on Hunton by leaving a copy of the petition and writ at the usual place of his abode with a free white person of the family over the age of fifteen years, in the county of Benton. The Circuit Court of Hickory county began its regular term on the 24th day of March, 1851, being more than twenty days after the service upon White, and fifteen days, exclusive of the day of service upon Hunton. The record and proceedings show that on the third day of the term aforesaid, at which the writs in this case were returnable, judgment by default was rendered heein against the said defendants for want of an answer to the plaintiff's petition. In vacation, the defendant, Hunton, prayed an appeal, and filed his bond with the clerk, and the clerk granted the appeal to him. White did not appeal; nor does he here complain of any error. The only point necessary for our adjudication arises in this case under the statute concerning Practice in Courts of Justice, of the session of the Legislature in 1848-9.

Under this act, in a petition on a promissory note for the payment of money in which the defendant has been regularly served with notice by leaving a copy at his usual place of abode, fifteen days before the return day of the writ, and he fails or neglects to answer, can the court render judgment against him by default? Art. 5, § 2 of the act, declares, that, “Every defendant served with the summons, fifteen days before the return day thereof, shall be bound to appear at the return day of the writ, and if such summons be served less than fifteen days, he shall be bound to appear at the term next after the return term of the writ.” Art. 6, § 2: “The only pleading on the part of the defendant is either a demurrer or an answer. It must be filed within six days after the return day of the summons, if the term shall so long continue, if not, then within such time as the court may by rule prescribe.”^b Art. 12, § 2: “If the action be founded on a bond, bill, or note for money, and there be no answer as hereinbefore required, the clerk may, under the direction of the court, enter judgment for the amount which...