Jones v. Overall

• Citation: 13 S.W.2d 581
• Decision Date: 05 February 1929
• Docket Number: No. 20289.,20289.
• Parties: JONES v. OVERALL et al.
• Court: Missouri Court of Appeals

13 S.W.2d 581

JONES v. OVERALL et al.

No. 20289.

St. Louis Court of Appeals. Missouri.

February 5, 1929.

Appeal from St. Louis Circuit Court; Moses N. Hartmann, Judge.

Suit by I. L. Jones against William Overall and another. From a judgment of dismissal, plaintiff appeals. Affirmed.

Hill & England, of St. Louis, for appellant.

Verne R. C. Lacy and M. G. Baron, both of St. Louis, for respondents.

BECKER, J.

Plaintiff filed his suit in the circuit court of the city of St. Louis in equity, to vacate, set aside, and declare null and void a judgment theretofore rendered by default by a justice of the peace in one of the districts of the city of St. Louis, and to enjoin and restrain the defendant, respondent here, from enforcing an execution issued on said judgment. On a hearing of the case, the court dismissed plaintiff's bill, and plaintiff in due course appeals.

It appears that on the 13th day of September, 1926, the defendant, William Overall, caused to be filed before a justice of the peace in the city of St. Louis his cause of action purporting to be based upon a negotiable promissory note in the sum of $100, with interest thereon; that one Archie Ewing, under section 2747, Revised Statutes of Missouri of 1919, was appointed special deputy by the justice for the service of the summons in said suit; and that the said Ewing made return upon the summons that he had served the same upon this plaintiff, the defendant in said suit in the said justice court, by delivering to him a true copy thereof. In due course the justice rendered a judgment in said cause by default in favor of plaintiff, William Overall, therein, and against I. L. Jones, the defendant therein. A transcript of said judgment was filed with the clerk of the circuit court of the city of St. Louis, and the defendant, Overall, thereafter had execution issued thereon, and the sheriff levied upon personal property belonging to the judgment debtor, Jones.

Thereupon Jones filed his bill in equity, setting up facts hereinabove set out, and stating further in his petition that he was never at any time served, personally or otherwise, by summons in said action before the justice of the peace, "and that the purported service thereon by said special deputy, Archie Ewing, is false, and that this plaintiff never at any time had any notice of said action until the sheriff, as aforesaid, took charge of plaintiff's assets, property and effects, pursuant to the execution as aforesaid; that this plaintiff was never at any time indebted to said defendant, William Overall, and never at any time executed in favor of said defendant the note purported to have been executed by plaintiff, and being the alleged subject of the action before the said justice of the peace aforesaid. * * * Plaintiff further avers that, by reason of the transcript of said judgment being filed in the circuit court, he has no remedy in the premises except in a court of equity, and that defendant, Overall, is insolvent, and prays that a temporary restraining order be issued against the defendants prohibiting them from in any manner enforcing said judgment by reason of the aforesaid execution, and that upon final hearing of the cause the judgment be...