Howell v. Sherwood

• Decision Date: 03 July 1908
• Parties: HOWELL et al. v. SHERWOOD et al.
• Court: Missouri Supreme Court

112 S.W. 50

213 Mo. 565

HOWELL et al. v. SHERWOOD et al.

Supreme Court of Missouri. Division No. 1.

July 3, 1908.

1. GARNISHMENT — JURISDICTION OF COURT— SUMMONING OF GARNISHEE—STATUTES.

Under Rev. St. 1855, c. 63, § 6, authorizing the summoning of garnishees in specified cases, and chapter 12, § 22, providing that garnishees shall be summoned by the sheriff declaring to them that he summons them to appear at the return term of the writ to answer interrogatories which may be exhibited by plaintiff, and by declaring that he attaches the moneys and debts owing by them to defendants, the omission of the sheriff summoning a garnishee to inform him when and where he shall appear to answer interrogatories filed in the garnishment suit, and to declare to the garnishee that he attaches the moneys and debts owing by him to defendant, is fatal, and the court acquires no jurisdiction over the garnishee or the subject-matter of the suit.

2. JUDGMENT—COLLATERAL ATTACK—WANT OF JURISDICTION.

A judgment rendered against a garnishee by a court having no jurisdiction over him or the subject-matter of the suit, because of the insufficiency of the service of process on the garnishee, is a nullity, and is subject to collateral attack.

3. EXECUTION—SALE—VOID JUDGMENT.

An execution and sale under a void judgment are void, and are inoperative to transfer title.

Appeal from Circuit Court, Greene County; James T. Neville, Judge.

Action by H. E. Howell and others against Thomas A. Sherwood and another. From a judgment for plaintiffs, defendants appeal. Reversed and remanded.

This is a suit in ejectment, for the possession of a tract of some 10 acres of land, situate in the city of Springfield, Greene county. The petition was in the usual form, and the answer of defendant Sherwood was a general denial of all the allegations of the petition, except the one of possession, and that defendant Blakey was a disclaimer of all interest in the premises, except as a tenant of his codefendant. The cause was tried by the court without the intervention of a jury, which resulted in a judgment for the plaintiff, and defendant duly appealed to this court.

Charles Carlton was the common source of title; and after the introduction of all the evidence, the defendant requested, and the court made, a special finding of facts, which, omitting formal parts, is as follows:

"Comes now the defendant in the above-entitled cause, and requests the court to make the following finding of facts herein, to wit:

"(1) The court finds that the testimony of the defendant, Thomas A. Sherwood, given in this case, is true, and that the facts concerning which he testified are as they were by him stated. (2) The court finds that on the 30th day of January, 1861, a judgment was rendered in the circuit court of Greene county, Mo., in favor of Peter Hayden and Pollock Wilson as plaintiffs against George A. Taylor as defendant, for the sum of $922.81 debt and $64.35. That upon this judgment an execution was issued on the 14th day of February, 1861, and that the clerk's execution docket, upon which the issue of this execution is noted, and upon which all executions in said cause were required by law to be noted, contains no memorandum of the issue of any other execution in the cause of Hayden & Wilson against George A. Taylor, nor is there any evidence that such other execution was ever issued. That said execution is missing from the files in said cause, and has disappeared from the office of the clerk of the circuit court of Greene county, Mo., and cannot be found by the clerk, after thorough and diligent search therefor, but that, in other respects, the files in said cause of Hayden & Wilson against Taylor appear to be intact. That the only return that was contained or ever appeared upon said execution was as follows: `Executed the within writ by summoning Charles Carlton as garnishee.' This was, in substance and effect the language of the return, and was signed by Thos. A. Reed as sheriff; but the return did not inform Charles Carlton where and when he was to appear. Nor did said return contain any recital that the sheriff declared to said Carlton that he seized or attached in his hands any debts, moneys, or credits due or owing by said Carlton to said George A. Taylor, defendant in said execution. Nor did said Carlton appear to the action, either personally or otherwise, nor file any answer to the interrogatories filed against him as garnishee. Nor were there any interrogatories filed in said cause, against said garnishee, until the August term, 1862, of said circuit court. Nor was any judgment, purporting to be an interlocutory judgment, entered against said Carlton until the August term, 1862, of the Greene county circuit court. And the court further finds, in this connection, that it was a custom of the sheriff who received the execution in question, and his deputies, to make returns in garnishment proceedings similar to the said return on the execution in the case of Hayden & Wilson against George A. Taylor, without reciting in such returns the fact that such officer declared to the party summoned as garnishee, on account of debts due and owing by him to the execution or attachment defendant, that the officer did attach in his hands all debts due from him to the defendant, or so much thereof as should be sufficient to satisfy the debt and interest or damages and costs. That final judgment on the 10th day of February, 1863, was rendered against the garnishee for $682, but no judgment for costs. That upon this judgment so rendered against said Carlton, execution issued on the 20th day of February, 1863, and was levied upon other property than that in controversy herein, on March 11, 1863, and that, as shown by the sheriff's return, dated August 11, 1863, the land so levied upon was sold for the sum of $695 under said execution, a part of which was applied on the costs, leaving a balance of only $661.94 to be credited on the execution, which was credited thereon.

"The court further finds that the return to the above-named execution contains upon its face evidence of alteration and amendment, and that the same was made in pursuance of an order of court, dated September 30, 1863, and contained in Book f, p. 200, of the records of the circuit court of Greene county, Mo., and that the same is the amendment to which reference is made by the court in its said order permitting the sheriff to amend his return upon his execution in said cause, and that said order had no reference to the return on the original execution in the case of Hayden & Wilson v. Taylor, nor did it...