Hudson v. Wright

• Decision Date: 29 May 1907
• Parties: SARAH A. HUDSON v. WRIGHT et al., Appellants
• Court: Missouri Supreme Court

103 S.W. 8

204 Mo. 412

SARAH A. HUDSON v. WRIGHT et al., Appellants

Supreme Court of Missouri, First Division

May 29, 1907

Appeal from Clinton Circuit Court. -- Hon. Alonzo D. Burnes, Judge.

Affirmed.

E. C Hall for appellants.

(1) The petition shows no equity in plaintiff's claim as against defendant Wright, because no scienter is alleged and plaintiff had her remedy at law. R. S. 1899, sec. 647; Cadwaleder v. Atchison, 1 Mo. 659; Cabanne v Lisa's Exr., 1 Mo. 683; Alnut v. Leper, 48 Mo. 319; Thias v. Seiner, 103 Mo. 314; Lenox v Harrison, 88 Mo. 491; Jones v. Paul, 9 Mo. 293; Merry v. Fremon, 44 Mo. 518. (2) There was a misjoinder of parties defendant as well as a misjoinder of causes of action. Defendants' interests were not united. Clarmorgan v. Guisse, 1 Mo. 141; Stalcup v. Garner, 26 Mo. 72. (3) The statement filed by defendant Wright in his action against Jacob I. Hudson in the justice court was sufficient to give that court jurisdiction. Mitchell Furniture Co. v. Payton, 4 Mo.App. 564; Polham v. Railroad, 45 Mo.App. 153; Lord v. Koonig, 7 Mo.App. 453; Damhorst v. Railroad, 32 Mo.App. 350; Lin v. Railroad, 10 Mo.App. 125; McCrary v. Good, 74 Mo.App. 425. (4) It was not necessary, to confer jurisdiction on the justice court, that the statement be sworn to or an affidavit filed in support thereof. Sublett v. Noland, 5 Mo. 516; Kleiblodt v. Grober, 6 Mo.App. 574. (5) A statement filed before a justice which is sufficiently specific to bar another action upon the same matter is all that is required. Damhorst v. Railroad, 32 Mo.App. 350; Johnson v. Kahn, 97 Mo.App. 628; Manley v. Cresent Co., 103 Mo.App. 135; Cunningham v. Dickerson, 104 Mo.App. 410; Van Cleave v. St. Louis, 159 Mo. 574. (6) It is not essential to confer jurisdiction on the justice that the written contract sued on be filed before summons issued. Livery Co. v. Freber, 102 Mo.App. 315; Heinrich v. Coal Co., 102 Mo. 229. (7) Judgments of justices of the peace are no more subject to collateral attack than judgments of courts of record. And the law will presume on such attack that the affidavit, if it was necessary, was filed in support of the petition in the justice court. Railroad v. Warder, 73 Mo.App. 117; Meyers v. Miller, 55 Mo.App. 338; Martin v. McLean, 49 Mo. 361; Cox v. Boyce, 152 Mo. 576; Cox v. Hunter, 152 Mo. 584; Wilson v. Coleman, 88 Mo.App. 564; Hope v. Blair, 105 Mo. 93; Atwood v. Atwood, 55 Mo.App. 370; State v. Dugan, 110 Mo. 138; Lingo v. Burford, 112 Mo. 149; Holt Co. v. Cannon, 114 Mo. 514. (8) Irregularity in or want of verification of any pleading will not render the proceedings subject to collateral attack. Gildeson v. Knight, 71 Mo. 403; Sloan v. Mitchell, 84 Mo. 546; Livingston v. Allen, 83 Mo.App. 294.

W. S. Herndon for respondent.

(1) The justice who rendered the judgment upon which the execution was based had no jurisdiction, because neither the note nor an affidavit of its loss or destruction was at any time filed with the justice. R. S. 1899, secs. 3852, 3854, 6138, 6140; Ins. Co. v. Foster, 56 Mo.App. 197; Orin v. Zeigler, 46 Mo.App. 193; De Vore v. Slacker, 49 Mo.App. 548. (2) It necessarily follows that where the note is lost or destroyed, the affidavit required by the statute must be filed in order to give jurisdiction. While the appellate courts of this State have not passed directly on the effect of a failure to file the affidavit, yet they have always recognized the necessity of such affidavit. Harryman v. Robertson, 3 Mo. 449; Bank v. Kesler & Marks, 53 Mo. 382; Lemon, Hose & Co. v. Cross, 60 Mo. 173; Warder & Co. v. Libby, 104 Mo.App. 140; Hogan v. Kaiser, 113 Mo.App. 711. (3) There was no appearance by defendant either at the time the judgment was rendered or at the time of its revival, and hence there could be no waiver of the statutory affidavit, as in Sublett v. Noland, 5 Mo. 516; Rhea v. Mfg. Co., 81 Mo.App. 400. (4) The undisputed evidence shows that Jacob I. Hudson had no personal property whatever at the time of the levy and sale of the land by the sheriff to defendant Wright; that said Hudson was the head of a family; he and his wife living on the land, in the county; that his interest if any in the land was less than three hundred dollars value. That he had no notice of the execution, levy or sale; that the sheriff did not apprise him of his exemption rights as required by section 3163, Revised Statutes 1899; and that he claimed the same as exempt. The sale was therefore void or at least he had the right to have the sale set aside as prayed in his answer. Bank v. Guthrey, 127 Mo. 189; St. Louis Brewing Assn. v. Howard, 150 Mo. 450; Stinson v. Call, 163 Mo. 323. (5) This is an equity case, and the finding of facts by the trial court is not final. This court must determine for itself both the facts and the law, under the evidence in the record. Blount v. Spratt, 113 Mo. 48.

OPINION

LAMM, J.

Sarah A. Hudson lodged her bill in equity against her husband, Jacob I., and one Jubal A. Wright, having for its object, first, to set aside a sheriff's deed dated September 14, 1902, conveying to said Wright the interest of said Jacob I. in and to a described part of the northeast quarter of the northeast quarter of section 4, township 56, range 32, in Clinton county; second, to vest the fee of said land in her. The decree, nisi, went in her favor -- Hudson abiding the event of the trial, but Wright appealing here.

In substance, so far as material, the case on the pleadings is this: It is alleged that Wright sued Jacob I. Hudson in 1895 before a justice of the peace on a lost or destroyed promissory note, making and filing no affidavit of its loss or destruction. Summons issuing, service was had, an indemnifying bond was filed, Hudson made default and in due course judgment followed for $ 66.70, plus costs. Not being paid, thereafter, in February, 1902, a citation issued to revive said judgment, and judgment of revival was entered for the sum of $ 98.35, plus costs -- defendant again making default. Execution again issued, a return of nulla bona was had and, on a transcript filed in the office of the clerk of the circuit court, a transcript execution issued and was levied upon the apparent interest of said Hudson in said land. It is further alleged that, on advertisement, a sale and sheriff's deed followed, the latter based on a bid of twenty dollars, which deed, having been duly executed, was placed of record in September, 1902.

This is the deed plaintiff desired to annul to clear up her title; and, to do so, averred the judgment of the justice was void for want of jurisdiction to render it because no affidavit of the loss or destruction of the note was made at the time of bringing the suit, or at any other time. Other grounds, claimed to show lack of jurisdiction are alleged, but, absent proof tending to sustain them, they may be put aside.

The bill averred, further, that plaintiff purchased the parcel of land in question in 1900 from Henry N. and Joseph S. West for twelve hundred and fifty dollars, to-wit, three hundred and fifty dollars paid down and the assumption of an existing nine hundred dollar mortgage; that instead of making a deed to her alone, the deed, without her knowledge or consent, was made to defendant Hudson and plaintiff, husband and wife; that she at once went into possession of said land; and, since then, had paid three hundred and nineteen dollars on the mortgage debt; that said payments first and last were from her sole and separate money and means, in which her husband had no right or interest; that she is the owner of said tract of land; that said Jacob I. Hudson never had any right or interest therein; and that said sheriff's deed constitutes a cloud on her tittle.

Defendant Hudson answered, admitting each and every allegation of his wife's bill. Further, and by way of cross-petition, he alleged that, as against all persons except plaintiff, he claimed the ownership of an interest in the land; that such interest was exempt from execution; that notwithstanding it was so exempt, his codefendant caused a transcript execution to issue as alleged in the bill and caused his said interest to be levied upon, advertised for sale and conveyed to him; that he, Hudson, was the head of a family; that he owned no personal property, then or now; that said real estate was incumbered for one thousand dollars; that it was worth less than one thousand five hundred dollars; that his interest therein was of less value than three hundred dollars; that the sheriff holding and executing the writ of execution did not notify him of that fact and did not apprise him of his exemptions as the head of a family under sections 3158, 3159, 3162, Revised Statutes 1899, as required by section 3163, nor of his right to hold his said interest exempt, and took no steps to set off his exemptions -- he, Hudson, having no notice or knowledge of the execution, levy or sale; that having no notice, he had no opportunity to claim his exemption, or to notify the sheriff that he claimed the same; that the judgment of the justice was void, as alleged in the bill; and, furthermore, he denied all the allegations of the separate answer of his codefendant Wright.

Wright's answer denied all and singular the allegations in the bill not specifically admitted -- averred that he is the owner of a half interest in the land "as tenant in common or joint tenant with the plaintiff;" that he derived his title by virtue of the sheriff's deed pleaded in the bill; that his codefendant was the owner of the "one undivided half as joint tenant with plaintiff prior to the sale and sheriff's deed" which interest passed to him by the sheriff's sale; that the Hudsons are husband and wife, and that they (having a common end in view) instituted this...