Huff v. Shepard

• Decision Date: 31 October 1874
• Citation: 58 Mo. 242
• Parties: JOSEPH HUFF, Respondent, v. ELIHU H. SHEPARD, Appellant.
• Court: Missouri Supreme Court

58 Mo. 242

JOSEPH HUFF, Respondent,

v.ELIHU H. SHEPARD, Appellant.

Supreme Court of Missouri.

October Term, 1874.

Appeal from Iron Circuit Court.

Marshall & Barclay, for Appellant.

I. One prominent clause in this contract, is this: “The balance of purchase money to be paid on such terms as may be agreed on between said parties.” If defendant, though able to fulfill his contract, cannot be judicially compelled to do so, the jurisdiction of equity is at an end. (Adams' Eq., p. 81; Kemble vs. Kean, 6 Sim., 333; Wiley vs. Robert, 31 Mo., 215; Fry Spec. Perf., §§ 185, 203, 221; Milnes vs. Gery, 14 Ves., 400; S. W. R. R. Co. vs. Wythes, 5 DeG. M. & G., 888; Potts vs. Whitehead, 5 C. E. Green, [20 N. J. Chancery,] 50; Taylor vs. Portington, 7 DeG. M. & G., 328; Sto. Eq., §§ 751, 767, 736 a.)

II. The court below rendered final judgment in this case at the return term, (only two days after the judgment by default). This was in defiance of the statute law, and of the authoritative teachings of this court. (Wagn. Stat., 1039, § 5; 1014, § 5; Dougherty vs. Pres. and Faculty, &c., 53 Mo., 579.)

III. The rule of court in this case pretends to transform a limited appearance for the purpose of raising a jurisdictional point into a general appearance for all purposes. Of this we have only to say, that the law-making power of this State is not yet delegated to the Circuit Court of Iron county, by the people of Missouri, and until such is done, judicial legislation of that kind will not be sanctioned--we believe--by this court. (Wagn. Stat., 1014, § 5; 46 Mo., 110; 33 Mo., 244.)

IV. The court below should have sustained both motions to quash summons, because of the reasons therein given, that the same were issued and tested by the plaintiff in his own behalf and interest, which is repugnant to the maxims of the common law and to the independent spirit of American jurisprudence. Nemo debet esse judex in propria causa. (12 Coke, 114 a; Wagn. Stat., 421, § 18; 422, § 31; Snydecker vs. Brosse, 51 Ill., 360.)

J. P. Dillingham, with J. W. Emerson, for Respondent.

I. The writ issued by the plaintiff, who was clerk, is not thereby invalidated. No one else was authorized to act. (Wagn. Stat., 258, § 15; 259, § § 15, 18.) And there is no prohibition in the law against a clerk bringing suit in his court by his attorney, and issuing process thereon as in other cases.

Section 18, p. 421, (Wagn. Stat.) plainly refers only to sheriffs and other purely ministerial officers who are required “to execute process,” or perform strict ministerial duties. (11 Verm., 503; 33 Mo., 216.)

II. Where a sale is made and the price fixed, but the terms of payment are to be afterwards agreed upon, and the purchaser after the sale refuses to agree upon any terms of payment, as it is admitted the defendant did in this instance, then the court will give judgment for the amount, precisely as it would do in a case where a sale was made for cash “on time,” and no time was agreed upon. When no time is fixed for the performance of an act, the party who is to perform it is to have a reasonable time; and this is to be determined by the nature of the act, etc. (4 Mo., 522; 2 Penn., 63; 3 Bibb., 105; 2 Greenl., 249; 29 Mo., 351.)

The case in 31 Mo., 215, upon which appellant relies, is not in point. In that case the agreement was verbal, and no price was fixed. In 10 Mo., 174, it was a contract to convey such lands as the defendant might own at the end of five years in the future, and no land was described or referred to in the contract.

III. Under the general prayer for relief contained in the first petition, “for such other and further relief as plaintiff may be entitled to,” it was competent for the court to grant the relief expressly prayed for in the amended petition, viz: for a vendor's lien. And final judgment was properly rendered at the return term. (Wagn. Stat., 1053, § 10.)

IV. It is purely an arbitrary construction to say that final judgment cannot be taken in such suit, when the statute says in express language “in all other cases,” etc. Is there any reason that a court may give final judgment in a case of damages, trespass, libel, etc., and yet not when its equitable powers are invoked?

LEWIS, Judge, delivered the opinion of the court.

Suit was instituted to compel specific performance of a written agreement. A summons was issued which was not expressed to run in the name of the State of Mo., and afterwards another was issued in proper form. Both were served on the defendant in St. Louis county, where he resided. At the return term, defendant, appearing only for that purpose and “not intending to confer jurisdiction of his person,” moved to quash both writs, because they were issued and attested by the plaintiff himself as clerk of the Circuit Court, and the second one for the additional reason that the first had been served. These motions were overruled.

On the first day of the term, plaintiff filed an amended petition, which more particularly described the property, which was the subject matter of the agreement. On the sixth day of the term, plaintiff filed a second amended petition asking for additional relief in the enforcement of a vendor's lien on the property. On the next day, he took an interlocutory judgment by default, and two days afterwards this was ripened into a final decree against defendant, in accordance with the prayer of the petition. Defendant's motion in arrest of judgment was overruled.

The points of practice appearing herein demand some attention before we proceed to the substantial merits of the controversy. Defendant's objections against the validity of the second summons were not well taken. The first, being unquestionably void, could not affect the second, which was therefore the only original process in the suit. There is no controlling reason why a clerk should not issue process in his own behalf, as plaintiff. The statutory provision (Wagn. Stat., 421, § 18) for a substitute in certain cases, applies only to the officers who execute process. An interested sheriff, by making a false return, might subject a defendant to judgment without notice in fact of the proceedings. Or, if biased in a different direction, he could deprive a plaintiff of his rights by omitting service at the proper time. But no such dangers attend the mere issuance of the writ. The document speaks for itself, and if served by the proper officer can accomplish neither more nor less, whether issued by the clerk or a temporary substitute. The legislature would seem to have recognized these truths, in its omission of clerical officers from the general provisions.

The Circuit Court never acquired any jurisdiction over the person of the defendant, which could authorize either the interlocutory or the final judgment. The suit, as originally brought, was not for the possession of real estate, or to affect any title thereto. There was but one defendant, and he was served in another county. He was not before the court for any purpose, except that which he chose to announce in his motion to quash the writ. It appears, however, that two efforts were made to subject him to judicial authority. One was by force of a “rule of court,” to the following effect:

“Application to the court to raise any jurisdictional question, shall be deemed an appearance, and no further process shall be necessary to bring the party into court. But if...