Johnson v. Baumhoff

• Decision Date: 18 May 1929
• Citation: 18 S.W.2d 13,322 Mo. 1017
• Parties: Justus W. Johnson, Appellant, v. George W. Baumhoff
• Court: Missouri Supreme Court

18 S.W.2d 13

322 Mo. 1017

Justus W. Johnson, Appellant, v. George W. Baumhoff

Supreme Court of Missouri

May 18, 1929

Motion for Rehearing Overruled June 7, 1929.

Appeal from St. Louis County Circuit Court; Hon. John W McElhinney, Judge.

Affirmed.

W. W Schiek and James R. Claiborne for appellant.

(1) The legitimate province of collateral impeachment is void judgments. 1 Freeman on Judgments, 642, 644. (2) In practice the words discontinuance and dismissal mean the same thing namely, that the case is sent out of court. Railway v. Franklin County, 55 Mo. 162; Thurman v. James, 48 Mo. 235. (3) When the judgment of dismissal was rendered in the May term against the plaintiff in the said partition suit and in favor of this appellant in the present suit, the plaintiffs were no longer in that court for any purpose, and the attorneys for either side could not reinstate the cause at the conclusion of the said term. Brewing Co. v. Hogg, 141 Mo.App. 391; Jude v. Sims, 141 Mo.App. 391; Parker v. Johnson, 22 Mo.App. 516; Woodward v. Woodward, 84 Mo.App. 228; State v. Goodrich, 159 Mo.App. 422; 18 C. J. 1145; State ex rel. v. Muench, 217 Mo. 140; 416 Ency. Pl. & Pr. 1115. (4) An attorney at law has no authority to waive service for client of original process. Bradley v. Welch, 100 Mo. 258. An attorney, under ordinary circumstances, has power to acknowledge service of process issued in the cause for which he has been retained, and his written admission of service is binding on his client, with the single exception of the service of the original summons or subpoena against a defendant. In respect to such process, there must be specific authority to make such an admission, or to waive it by entering an appearance for the defendant. 3 Am. & Eng. Ency. Law (2 Ed.) 323; Bradley v. Welch, 100 Mo. 258; State ex rel. v. Muench, 230 Mo. 238. (5) It is therefore evident that the entire judgment was void and a nullity; that the demurrer filed by the defendants should have been overruled, and that the case be permitted to proceed to trial. The Circuit Court of Phelps County had absolutely no jurisdiction to disturb the judgment rendered by it in the May term, for the reason that it became absolutely final, and that any judgment rendered without the entry of appearance or without service of process upon this appellant is void, and that the defendant, Baumhoff, in this proceeding, has no title to the property, or any claim thereto.

R. T. Brownrigg and Mason, Altman, Goodman & Flynn for respondent.

(1) Where plaintiff, as here, a former co-tenant, brings ejectment proceedings to recover land which was sold in partition proceedings under final judgment prior to his ejectment suit, in which partition proceedings he was a party, such suit in ejectment is a collateral attack upon the judgment in partition. As to what constituties a collateral attack see: Freeman on Judgments (5 Ed.) secs. 307-309; Harter v. Petty, 266 Mo. 297. (2) The judgment of a court of general jurisdiction cannot be collaterally attacked unless it is void on its face. Freeman on Judgments (5 Ed.) 819, sec. 383. (3) The plaintiff undertaking in this ejectment suit, in his reply, to attack the judgment pleaded in the defendant's answer, does not set out in his reply the recitals contained in the judgment rendered in December, 1921, in the partition suit. He only sets out two entries in the proceeding which were made in 1917. It, therefore, cannot be determined from anything that plaintiff has set up in his pleadings whether or not the judgment attacked was void on its face, and all the presumptions as to the validity of the judgment are against the plaintiff here. (4) After a judgment has been rendered by a court of competent jurisdiction a party to the suit cannot attack it collaterally by showing want of authority of an attorney to represent him who in fact undertook to do so. Cochran v. Thomas, 131 Mo. 278; Stuart v. Dickinson, 290 Mo. 546; Riley v. O'Kelly, 250 Mo. 662; Scott v. Royston, 223 Mo. 568; Miller v. Assurance Co., 233 Mo. 95; Freeman on Judgments (5 Ed.) sec. 610.

OPINION

Frank, J.

This is an action by plaintiff, appellant here, to recover the possession and rental value of certain real estate, and damages for withholding same from plaintiff. Judgment was rendered on the pleadings in favor of defendant and plaintiff appealed.

The suit was brought to the September, 1924, term of the Circuit Court of St. Louis County. The petition alleges that on April 1, 1922, plaintiff was the owner and entitled to the possession of an undivided one-fourth interest in certain land in St. Louis County, Missouri, describing it, and that defendant has, and now does, unlawfully withhold same from the possession of plaintiff. The damages are laid at $ 3000 and the rental value at $ 2500 per annum.

Defendant's answer (1) denied the allegations of plaintiff's petition, and (2) alleged, in substance, that pursuant to a decree in partition and order of sale, rendered by the Circuit Court of Phelps County, Missouri, in a cause wherein Isabella Brooks et al., were plaintiffs, and Justus W. Johnson, appellant here, et al., were defendants, said lands were sold at the courthouse door in St. Louis County on December 3, 1921; that defendant was the purchaser at said sale at the price of $ 28,000 and at that time received a deed whereby he became the owner of said lands, and ever since said date has been in full possession thereof.

Plaintiff filed a reply to defendant's answer, in which he admitted that defendant claimed title to the lands in question under the conditions and circumstances alleged in the answer, and denied all other allegations in said answer. It is then alleged that the decree in partition and order of sale were null and void, and on account thereof the purported sale of the land to defendant pursuant to said decree did not invest him with any right, title or interest in the lands for the following reasons:

(1) That during the May, 1917, term of said court, before the decree in partition and order of sale was made, plaintiff voluntarily dismissed said partition suit, and the following judgment of dismissal was rendered by the court at that time, viz.:

"Now at this day comes the plaintiffs herein by their attorney and dismiss their cause of action. Whereupon it is considered by the court that said suit be dismissed and that siad defendants have and recover of and from the plaintiff all costs in this behalf laid out and expended and that execution issue therefor."

(2) That no further proceedings were had in said cause until the succeeding September term, 1917, of said court, when on September 8, 1917, during said September term, without the knowledge or consent of Justus W. Johnson, and without entry of appearance or service of process upon him, the following written stipulation was filed in said cause, viz.:

"It is hereby stipulated by and between counsel for plaintiff and defendant, Justus W. Johnson, in the above entitled cause that the order of dismissal heretofore made in this case may be set aside and the cause reinstated upon the docket and to be continued from time to time and not to be reset only on ten days' notice from either party, this because of pending suit in Supreme Court between above parties;" and

(3) That after the filing of said stipulation there was entered of record in said cause, the following order:

"Whereupon it is considered by the court that said order of dismissal made in said cause at the May term, 1917, of this court be and the same is hereby set aside and this cause of action is reinstated and continued."

The reply further alleges that the defendant in said cause, appellant here, at no time consented that the order dismissing said partition suit at the May, 1917, term of said court, might be set aside at a subsequent term and the cause reinstated, and that he at no time received any part of the proceeds of the sale of said lands.

Defendant demurred to plaintiff's reply. The court sustained said demurrer, and on motion of defendant, rendered judgment on the pleadings in favor of defendant, and plaintiff appealed.

In addition to the lands involved in this suit, the parties owned other lands in Phelps County, and as the greater part of their land was in that county, the partition suit was brought there.

The pleadings concede that defendant bought the land in question at a partition sale on December 3, 1921,...