Jewett v. Boardman
| Decision Date | 25 May 1904 |
| Citation | 81 S.W. 186,181 Mo. 647 |
| Parties | JEWETT et al. v. BOARDMAN, Appellant |
| Court | Missouri Supreme Court |
Appeal from Macon Circuit Court. -- Hon. Nat. M. Shelton, Judge.
Affirmed.
Ben Eli Guthrie and Dan R. Hughes for appellant.
(1) The petition alleges that the circuit court at Macon had no jurisdiction to entertain the attachment suit of Henry J Boardman v. Philo D. Jewett, and proceeded upon the theory that there was a total want of jurisdiction in said court to render the judgment that was rendered. If such was the fact then there is no equity in the bill because the judgment execution and sale thereunder were absolutely void and conferred no right upon the plaintiff therein and would not defeat an action in ejectment to recover the land by Nellie M. Jewett and her grantees. If it be a fact that at the time of the attachment suit of Boardman v. Jewett, the defendant Jewett had no title, but the title and estate was in the plaintiff in this cause, then her interest could in no wise be affected and endangered by the attachment proceeding and the subsequent judgment and sale. This is not an action to remove a cloud from a title, but to set aside a decree in equity because the judgment which the decree in equity enforced was void. (2) The creation of an additional court in the county or the prescribing of a different place for it to sit in the county, does not take away the original jurisdiction of the old court. It remains the same as it ever was. State ex rel. v. Hughes, 104 Mo. 459; State v. Orrick, 106 Mo. 111; State ex rel. v. Yancy, 123 Mo. 427. (3) If the Acts of 1877 and 1879 are to be construed as depriving the circuit court at Macon of jurisdiction throughout the county, then it is in effect organizing a county in the so-called La Plata district and that without a vote of the people, which is in conflict with the Constitution (sec. 5, art. 9) and this court will not adopt an interpretation of the statute that will make it conflict with the organic law.
R. S. Matthews & Otho F. Matthews for respondents.
(1) In both the proceedings in the attachment suit at the April term, 1896 at Macon, and in the suit to set aside deed to Nellie M. Jewett at La Plata, March term, 1899, extrinsic evidence and legal acumen is necessary to determine the fraud practiced on Nellie M. Jewett. The judgment in the La Plata court could not be met in a suit at law without evidence dehors. The suit was brought in due form and reasonably regular on its face. 6 Am. and Eng. Ency. Law, p. 153; Mason v. Black, 87 Mo. 329; Beedle v. Mead, 81 Mo. 297; Clark v. Ins. Co., 52 Mo. 272; Bank v. Evans, 51 Mo. 335; Railroad v. Norton, 15 Mo. 142. (2) In both the attachment suit at Macon, and the suit to set aside the deed at La Plata, there was no personal service, and the evidence is that the respondents had no knowledge or information that any proceedings were being had against them. The evidence shows the real estate in question was the separate property of Nellie M. Jewett, bought with her own separate money. This would have been a good defense against a suit to set aside the deed; likewise in the attachment proceedings at Macon the fact that the land in question was bought with the separate estate of Nellie M. Jewett, would have been a perfect defense. The rule of equity is, "where the defendant in an action at law has a good defense on the merits which he is prevented by accident from setting up or making available without any negligence or inattention on his part, and a judgment is rendered against him, equity will exercise its jurisdiction on his behalf by enjoining further proceedings to enforce the judgment or by setting it aside." 2 Pomeroy Eq. Jur., sec. 836; also secs. 871 and 919; Marx v. Fore, 51 Mo. 69; Eager v. Slover, 59 Mo. 87; Barlow v. Steel, 65 Mo. 611; Napton v. Leaton, 71 Mo. 358. (3) While a mere inadequacy of price will not of itself justify the setting aside a deed made in pursuance of a sheriff's sale, yet when that inadequacy is proven there must be a strict regularity of proceedings or the deed should be set aside. Nelson v. Brown, 23 Mo. 13; Parker v. Railroad, 44 Mo. 415; Beedle v. Mead, 81 Mo. 297; W. B. G. Co. v. Allen, 63 Mo.App. 456; Gordon v. O'Neil, 96 Mo. 355. (4) The act creating the La Plata court and acts amendatory thereto by reason of the restriction placed upon said court as to territory and excluding the jurisdiction of the circuit court at Macon from the territory within the La Plata court, is not unconstitutional. It is not unconstitutional to regulate the court and to make necessary provisions for it and to govern it. State ex rel. v. Field, 119 Mo. 593; State ex rel. v. Hughs, 104 Mo. 459; State v. Orrick, 106 Mo. 111.
This is a suit in equity to set aside a judgment or decree rendered in the circuit court of Macon county, by default, against these plaintiffs, who are husband and wife, in favor of this defendant, whereby the plaintiff Nellie M. Jewett was divested of title to certain land in that county and the defendant invested with the same.
The suit in which the decree that is now sought to be set aside was rendered, was filed by this defendant as plaintiff against these plaintiffs as defendants on nineteenth September, 1898, in the circuit court of Macon county at La Plata. In the petition therein it was alleged that the defendants were non-residents of Missouri; that at the April term, 1896, of the Macon circuit court in an attachment suit therein pending, wherein Boardman was plaintiff and Philo D. Jewett was defendant, a judgment was rendered in favor of that plaintiff against the defendant for $ 714 and costs and the land in question, which was the subject of that attachment, was, during the September term, 1896, sold by the sheriff under execution that had issued on the judgment, and at that sale that plaintiff had become the purchaser and received the sheriff's deed; the petition then went on to allege that the land really belonged to Philo D. Jewett at the date of the attachment, but that he had caused the title to be taken in the name of his wife, Nellie M. Jewett, and held by her to defraud his creditors and place it beyond their reach by ordinary process; the prayer of the petition was to divest the wife of the title and vest it in that plaintiff; the decree was in conformity to the prayer. On the filing of the petition in that case there was an order of publication made by the clerk in vacation against the Jewetts as non-residents. That order of publication was directed to a newspaper published in the city of Macon, the county seat, and was published in that paper. On proof of the publication, the defendants not appearing, an interlocutory default was entered against them which was followed by the final decree above mentioned. This suit is to set aside that decree and the sheriff's deed in the attachment suit.
The petition in the suit now before us alleges that the court in which the judgment in the attachment suit is said to have been rendered, which was the circuit court sitting at the city of Macon, had no jurisdiction in that case, because Philo D. Jewett was not served with process, and the land said to have been attached was not in that part of the county over which the circuit court in the city of Macon had jurisdiction, but was in the exclusive jurisdiction of the circuit court sitting at La Plata. It also alleges that no judgment was in fact rendered in the attachment suit. The petition further alleges that the circuit court at La Plata, in which the decree which is now sought to be set aside was rendered, acquired no jurisdiction over these plaintiffs, defendants therein, because they were not served with process, and because the order of publication against them as non-residents was made in a newspaper outside of the territorial jurisdiction of the La Plata court.
The petition also alleges that the selection of the Macon court for the attachment suit and of the Macon newspaper for the publication of the notice of the La Plata suit, were made by the plaintiff in those suits with the fraudulent design of preventing those suits from coming to the notice of these plaintiffs.
The answer is a general denial.
The plaintiff's evidence was as follows:
The record in the attachment suit at Macon showed the petition, affidavit, writ, return of the sheriff thereon that he had attached this land (omitting however to say either that the defendant was served or that he could not be found), order of publication and proof that it was published in a newspaper in Macon City. In the minutes of the clerk under date May 2, 1896, is a memorandum as follows: "Henry J. Boatman v. Philo D. Jewett. Judgment for plaintiff for $ 714 against property attached described as follows:" describing this land. On the court records of that day is this: "Henry J. Boatman v. Philo D. Jewett." This is followed by a blank space in which a judgment might have been written but was not. Special execution issued under date September 1, 1896, reciting a judgment as indicated in the sheriff's memorandum above shown, under which the sheriff sold the land as the property of Philo D. Jewett to Boardman, the plaintiff in attachment, and executed a deed to him, in the usual form of sheriff's deeds in such case, under date September 29, 1896.
The entries in the circuit court record at Macon in the case of Henry J. Boardman v. Philo D. Jewett show that on May 1, 1897, the cause was continued; at the September term following, proof of publication was filed; on November 30, 1897, the plaintiff dismissed the suit.
The record shows that in the equity suit at La Plata in which the decree was rendered that is now sought to be set aside, there...
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