Keary v. Baker

• Decision Date: 31 March 1863
• Citation: 33 Mo. 603
• Parties: MARTIN KEARY, Appellant, v. PHILIP BAKER et al., Respondents.
• Court: Missouri Supreme Court

33 Mo. 603

MARTIN KEARY, Appellant,

v.PHILIP BAKER et al., Respondents.

Supreme Court of Missouri.

March Term, 1863.

Appeal from St. Louis Land Court.

This was an action of ejectment brought by the appellant against Baker and others, tenants of Aloys Soderer, (who on motion was made co-defendant,) for a lot of ground on Franklin avenue, in the city of St. Louis.

The plaintiff offered in evidence the record of the proceedings and judgment both of the Land Court and the justice of the peace, in a certain action of unlawful detainer instituted by one William Fulton against Jacob Halter, wherein Fulton, on the 21st day of August, 1856, obtained judgment. The defendant Halter duly and regularly appealed to the October term, 1856, of said Land Court, the said Soderer becoming his security in the recognizance for the appeal.

At the October term, 1856, of the Land Court the case was continued, no counsel appearing. At the succeeding March term, 1857, it was again continued, but for what reason is not stated. At the October term, 1857, when it was regularly reached and called for trial, the said court rendered the following judgment:

“Now at this day, this cause coming on to be heard, it is ordered and adjudged by the court that the appeal be dismissed, and that the said William Fulton recover of the said Jacob Halter, and of Aloys Soderer, his security in the appeal bond, his costs and charges herein in this behalf expended; and that he have execution thereof.”

In addition to the above the plaintiff also offered in evidence the sheriff's deed to him for the premises in controversy, the same having been levied upon and sold by the sheriff as belonging to the said Soderer, the security, under execution issued out of the clerk's office of the said Land Court against both principal and security; to the giving of which record and deed in evidence the defendants objected for the reason that the said judgment and execution were void, and the said deed therefore passed no title to the plaintiff.

The court sustained the objection; and, excluding the evidence, gave judgment for the defendants.

The specific objections to the plaintiff's title were that the said judgment and execution were void for the following reasons:

1. That the said execution was not in conformity with nor warranted by the judgment of the Land Court.

2. That the judgment itself being neither one of affirmance nor the result of a trial anew in the Land Court, but a mere dismissal of the appeal, there was no authority in the court to award judgment and execution against the security.

It is agreed that these are the sole questions to be submitted to this court for its adjudication.

A. Hamilton and C. D. Colman, for appellant.

I. As to the second objection, this assumes that the jurisdiction of the Land Court did not attach as to the security, there being a mere dismissal of the appeal; whereas the statute (§ 23, art. 9, of the Justices' Act,) limits the power to render a summary judgment against the security to the contingency of either an affirmance or a judgment against the appellant on a trial de novo in the upper court.

1. The regularity of the appeal and the consequent cognizance of the court over the subject matter are not questioned. Was there jurisdiction as to the security? Where a court is invested with authority to be exercised in a certain contingency, its decision that the contingency exists is res adjudicata, and cannot be questioned. (15 Ia. 420, 421, and cases cited.)

But consent and waiver define the attitude of the security and make him a party; we do not say a co-ordinate party with the principal, entitled to participate in the management of the case, but a party to the record, as much so as if the Legislature had in express terms declared him to be such. The obligation is in form and effect, as well as in name, a recognizance. As such it is returned to and becomes a record of the court and an incident of the case. The remedy by statute is but a summary mode of enforcing it according to its effect. (10 Mo. 289.) Like the security in the admiralty recognizance or stipulation, or the security for costs of suit, by executing the instrument the security acknowledges himself in court so far at least as may become necessary for the ultimate enforcement of the obligation, and is presumed to be cognizant of all proceedings in the case against himself. For the purposes of judgment, then, the security is in a legal and available sense before the court, the judgment is had in his constructive presence, as much so as if rendered on default in a proceeding requiring notice. As a party to the record he must take notice of the proceedings against himself, and is as effectually bound by the judgment as if he were a party to the suit. (1 S. & M. 389; 21 Mo. 81; 5 How. Miss. 456; 3 Ired. 91; 6 Humph. 91-92; 1 Hill, S. C. 42; 13 Pick'g, 53; 12 Rich. L. 277; 2 Brown's Civil & Ad. Law, 409; 2 Conk. Ad. Pr. 102, 114, 115; 4 Wheat. 243; 30 Ala. 237.)

If in the exercise of the jurisdiction acquired by the appeal error intervened to the prejudice of the security, his only remedy consisted in some direct proceeding. He cannot be allowed to assume the position of a stranger to the record, or be heard to say to the purchaser, “I was a party to the record, but not for such a judgment as that rendered,” or “the court misjudged as to the contingency upon which the right to enter judgment against me depended.” As was said by this court in Werthimer v. Booneville, (29 Mo. 258,)“the question of jurisdiction cannot be made to depend upon the fact whether the judgment is right or wrong.” By entering into the obligation, the security took the chances of an erroneous application of the law for its enforcement, and, especially where the rights of a purchaser under the judgment are concerned, must stand the hazard of the die. The distinction is between mere details or even actual error and fundamental defects--a lack of jurisdiction or power in the court and a wrongful or irregular execution of it--a direct and a collateral revision. No principle of law is better settled, and none has been more explicitly and repeatedly asserted by this court, than that where the subject matter and party are within the legal cognizance of the court, its judgment is never void and cannot be questioned collaterally. That the plaintiff was a purchaser under a judgment for costs only, will not deprive him of the protection of the rule. (20 Mo. 445; 16 Mo. 336; 12 Mo. 611; 26 Mo. 289; 29 Mo. 151; and see 12 Ohio, 273; 15 Ohio, 435; 3 Ohio, 306; 6 Ohio, N. S. 303; 16 Ohio, 271; 9 Grat. 326-7; 3 Ired. 91; 2 Zabr. 565; 4 Dana, 429; 31 Miss. 592; 9 Pet. 329.) Nor will he be affected by an erroneous award of execution. (12 Mo. 260.)

2. But supposing the security entitled to impeach the validity of the judgment, the objection taken cannot prevail; there is nothing of which he could complain. The case was not within sections 30 and 31 of article 1 of the statute of forcible entry and detainer. The dismissal of the defendant's appeal, as contemplated by those sections, is the same as in other appeals, and is attended with the like consequences. It is founded upon essential defects in the appeal which go to the jurisdiction of the appellate court, and results in the remanding of the case to the justice for execution. In every other instance, that is to say, wherever the jurisdiction has so far attached as to sustain the appeal, the case is retained in the upper court for final determination and execution there. (8 Mo. 500.) Every reasonable presumption will be indulged in favor of the regularity of the proceedings. Where the record is silent as to the ground upon which the action of the court is based, it will be presumed to be correct, if justifiable under any possible state of facts. (31 Miss. 705.)

Certain points, then, are clear: 1. That the failure to prosecute was a breach of the recognizance. 2. That this entitled the appellee to at least the costs of the appeal. 3. That these could not have been collected by any process issued by the justice of the peace. 4. That, in addition to these costs, the appellee was entitled to a judgment against both principal and security either of affirmance, in express terms, embracing the damages and costs below, (11 Mo. 215,) or for the intervening damages also, (22 Mo. 494.) 5. And that in any direct proceedings for the reversal of the judgment, its limited character arising from the omission of the damages would be considered as beneficial to the security. As was said by Judge McGirk, (4 Mo. 563,)“the security was liable for the costs at all events.”

The assessment of damages generally could have taken place at any time during the term; and the omission to make the costs and damages recovered before the justice a part of the judgment of the Land Court might have been supplied by an amendment without producing any change in the form of the entry, except as to the amount for which execution should issue. Notwithstanding the terms employed, the proceeding would be equivalent to and support the averment of an affirmance. Even a reversal and a new judgment differing essentially from that rendered in the lower court has been held to be an affirmance, and to authorize a summary judgment against the security where the statute confined the remedy to the single case of an affirmance. (22 Ill. 91; 2 Scam. 571; 5 La. An. 523.) And a verdict and judgment had on a trial de novo are in legal effect an affirmance. (1 S. & M. 390.)

In the case cited from 2 Scammon, 571, where the appeal was dismissed and the condition of the appeal bond was “to pay the debt and costs in case the judgment shall be affirmed on the trial of the appeal, the court say, “What is the object of this requirement, and what its meaning and intention? Manifestly to secure the opposite party in his debt and costs, in case the judgment shall not be reversed; in case he shall be in the Circuit Court the successful p...