January v. Rice

• Decision Date: 31 March 1863
• Citation: 33 Mo. 409
• Parties: DERRICK A. JANUARY et al., Respondents, v. CALEB RICE et al., Appellants.
• Court: Missouri Supreme Court

33 Mo. 409

DERRICK A. JANUARY et al., Respondents,

v.CALEB RICE et al., Appellants.

Supreme Court of Missouri.

March Term, 1863.

Appeal from St. Louis Court of Common Pleas.

Defendant Rice, residing in St. Charles county, was sued jointly with the other defendants, residing in St. Louis county, upon a note made by Barclay and endorsed by Robbins, Hungerford, and by Rice, successively. Robbins and Barclay were served with process in St. Louis county; Rice was served in St. Charles county; Hungerford was not found.

Robbins and Barclay answered, and the case tried and judgment rendered. Upon motion the judgment was set aside, whereupon the plaintiffs dismissed as to Barclay, Robbins and Hungerford, and took judgment by default against Rice, April 7, 1860, for $1,768, with ten per cent. interest.

Upon May 22, 1860, execution having issued to St. Charles county, defendant Rice filed his motion to set aside the judgment by default, because the court had no jurisdiction after the suit was dismissed as to all the defendants residing in St. Louis county, and also filed an affidavit alleging that he was accommodation endorser and had a good defense. This was overruled.

A motion in arrest was also filed for want of jurisdiction of defendant's person after the dismissal as to the other defendants and because the judgment was irregular. This motion was overruled also, and defendant appealed.

Whittelsey, for appellants.

I. By the Practice Act, (R. C. 155, p. 1220, art. 4, § 1,) where the defendant is a resident of this State, suit must be brought in the county in which the defendant resides, or in which defendant is found, and plaintiff resides; and where there are several defendants residing in different counties, suit may be brought in any such county. (See also, § 12, p. 1224, R. C. 1855.)

This defendant was joined with the other defendants by virtue of the provisions of R. C. 1218, § 6, which could not have been done at common law.

It is admitted, therefore, that the suit was properly brought in the first place; but defendant contends, that when he was left as the sole defendant by the dismissal of the others, he stood in the same relation to the plaintiff as if he had been sued alone in the first place and served with process in St. Charles county.

In such case he could have demurred for want of jurisdiction of his person. (R. C. 1855, p. 1231, § 6, § 1.) The judgment therefore was irregular, and the default should have been set aside for that reason. (Neidenberger v. Campbell, 11 Mo. 359; Doan v. Holly, 27 Mo. 256.) Where there is irregularity in the proceedings, the court may even set aside the judgment at a subsequent term. (Brewer v. Dinwiddie, 25 Mo. 351; Stacker v. Cooper Ct. C., 25 Mo. 401; Smith's Adm'r v. Rollins, 25 Mo. 408; Doan v. Holly, 25 Mo. 357; Harbor v. Pacific R. R. 32 Mo. 423.)

II. It was apparent upon the record, that the court when it entered the judgment had no jurisdiction of the person of defendant.

The statute had been violated, the judgment was erroneous, and should have been arrested. (R. C. 1855, p. 1286; Harbor v. Pacific R. R. 32 Mo. 423.) Jurisdiction could not be forced nor obtained by trick. (Ashburn v. Ayres, 28 Mo. 75.)

B. A. Hill, for respondents.

BATES, Judge, delivered the opinion of the court.

This suit was brought against four persons. It was brought in St. Louis county, and a summons issued against three of the defendants, Barclay, Robbins and Hungerford, to that county, and a counterpart was issued to St. Charles county, against the defendant Rice, who resided in that county. Hungerford was not served with process, the other defendants were. Barclay and Robbins answered; Rice did not, but made default, and the petition was taken against him as confessed on the 28th...