Howell v. Sherwood

• Decision Date: 03 July 1908
• Parties: H. E. HOWELL et al. v. THOMAS A. SHERWOOD et al., Appellants
• Court: Missouri Supreme Court

112 S.W. 50

213 Mo. 565

H. E. HOWELL et al. v. THOMAS A. SHERWOOD et al., Appellants

Supreme Court of Missouri, First Division

July 3, 1908

Appeal from Greene Circuit Court. -- Hon. Jas. T. Neville, Judge.

Reversed and remanded.

T. J Delaney and Henry C. Young for appellants.

The sheriff's deed attempting to convey Carlton's interest is absolutely void because of lack of jurisdiction in the court to render judgment in the so-called garnishment proceeding against Carlton. Norvell v. Porter, 62 Mo. 309; Gates v. Tusten, 89 Mo. 13; Malsby v Farr, 3 Mo. 430; Coal Co. v. Adams, 99 Mo.App 482; Huffman v. Sisk, 62 Mo.App. 398; Feurt v. Castor, 174 Mo. 301; Anderson v. Scott, 2 Mo. 15; Cabeen v. Douglas, 1 Mo. 336; Padden v. Moore, 12 N.W. 724; Brown on Jurisdiction, pp. 121, 122, 127; 1 Black on Judg., 223; Grocer Co. v. Carlson, 67 Mo. 183. And such lack of jurisdiction may be shown by secondary evidence of the contents of the lost files for the purpose of impeaching the judgment. Eaton v. Hall, 5 Met. (Mass.) 287; Parry v. Walser, 57 Mo. 172; Foulk v. Colburn, 48 Mo. 230; Ravenscroft v. Giboney, 2 Mo. 1; McClanahan v. West, 100 Mo. 321; Davis v. Montgomery, 205 Mo. 271; Land Company v. Mining Company, 187 Mo. 434; Graham v. O'Fallen, 3 Mo. 507; Burnett v. McCluey, 78 Mo. 689; Howard v. Thornton, 50 Mo. 292. It is also void because the execution is an alias or renewed execution and fails to recite the issue of the former execution, the levies thereunder and the amount realized therefrom. Laws 1863, p. 20; Maupin v. Emmons, 47 Mo. 308; Wood v. Augustine, 61 Mo. 50. It is also void because issued for costs in addition to the judgment while the judgment did not carry costs. Under the statute then in force a judgment in garnishment proceedings did not carry costs unless specifically so directed therein. Maloney v. Real Est. B. & L. Assn., 57 Mo.App. 384; R. S. 1855, ch. 12, 70 and 75; Ibid. ch. 40, 6 and 32. It is also void because satisfied by the sale under the first execution. It is also void because made returnable to a day in the past instead of to one in the future, the execution being issued on the 7th day of December, 1863, and made returnable to the January term, 1863.

Patterson & Patterson for respondents.

On February 14, 1861, an execution in favor of Hayden and Wilson was duly issued against Geo. A. Taylor and on that execution Charles Carlton was summoned as garnishee. On the 10th day of February, 1863, a final judgment in default was rendered against Charles Carlton for the sum of $ 682 and costs. It is contended on the part of appellants that the officer having in charge the said execution merely summoned Carlton but did not declare to him that he attached all debts due from him to the judgment debtor, or so much thereof as would have been sufficient to satisfy the judgment debt, etc. The execution is lost and has not been seen since 1866 or 1867. It has always been the practice of sheriffs, in garnishment proceedings, under execution, though not required by statute, to serve a written notice on the garnishee, informing him particularly of the nature of the proceeding and declaring to him in writing that he attached all debts due the judgment debtor and all goods, etc., particularly describing same, and to return a copy of said written notice with the execution. The said execution was returned at the first regular term of the court held after the issuance of the execution, interrogatories were duly filed, witnesses on the part of the judgment creditors duly subpoenaed and present, but Carlton made default. The court, whose statutory duty it was to inspect the return of service, which was then a part of the files in the proceeding, found as follows: "And it appearing to the satisfaction of the court that Charles Carlton has been duly summoned as garnishee in this cause, and has failed to answer," etc., and thereupon a final judgment in default was entered against Carlton for $ 682 and costs. No appeal was ever taken from this judgment. No proceeding was ever instituted to set aside the judgment for irregularity or to set aside the default. The court had jurisdiction of the subject-matter of the garnishment proceeding invoked by the issuance of a fieri facias execution and by the direction of the judgment creditors of Taylor to summon Carlton as garnishee, and had jurisdiction over the person of Carlton by reason of the sheriff executing the writ of execution by personally summoning Charles Carlton as garnishee. Jurisdiction of the subject-matter is the power of the court to hear and determine cases of the class to which the proceeding in question belongs. Leonard v. Sparks, 117 Mo. 103; Cooper v. Reynolds, 77 U.S. 308; Pennoyer v. Neff, 95 U.S. 417. A direct and seasonable attack on the return of service is one thing, and a collateral attack whether made one day or forty years after the rendition of a judgment, is quite another thing. It should be borne in mind that every case cited by appellants is a case wherein the defective or irregular return of service was put in issue by direct attack. Charles v. Marney, 1 Mo. 537; Hickman v. Barnes, 1 Mo. 156; Blanton v. Jameson, 3 Mo. 52; Wilson v. Jackson, 10 Mo. 213; State to use v. Williamson, 57 Mo. 198; secs. 44, 48, p. 539, R. S. 1855. The personal service on Carlton as testified to by Judge Sherwood, is good and proper so far as it goes. The sheriff as a sworn public officer is presumed to have done his duty and there is no evidence that he did not do so other than the silence of his return. And the silence of one portion of the record is not sufficient to overthrow the affirmative declaration of due service in the judgment in a collateral proceeding a lifetime after the service. Freeman on Judgments, sec. 125; Segal v. Reisert (Ky.), 107 S.W. 750; Cloud v. Pierce City, 86 Mo. 361.

WOODSON J. Valliant, P. J., absent.

OPINION

WOODSON, J.

This is a suit in ejectment for the possession of a tract of some ten 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 of defendant Blakey was a disclaimer of all interest in the premises except as a tenant of his co-defendant.

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, Missouri, 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 costs. 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 and 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, Missouri, 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 and 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 v. 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 ...