Kinsley Bank v. Woods

Decision Date03 December 1934
Docket NumberNo. 18191.,18191.
Citation78 S.W.2d 148
PartiesKINSLEY BANK v. WOODS et al.
CourtMissouri Court of Appeals

Appeal from Circuit Court, Morgan County; Nike G. Sevier, Judge.

"Not to be published in State Reports."

Suit by the Kinsley Bank against Richard H. Woods and Weightstill Woods. From a judgment quashing execution issued against the property of Weightstill Woods, the plaintiff appeals.

Reversed.

A. J. Bolinger, of Versailles, for appellant.

Weightstill Woods, of Chicago, Ill., for respondents.

BLAND, Judge.

This is a suit on a promissory note executed by the defendant, Richard H. Woods, as maker, in favor of plaintiff, as payee. The note was endorsed by the defendant, Weightstill Woods. Personal service was had upon the defendant, Richard H. Woods. However, the defendant, Weightstill Woods, being a nonresident of this state, property belonging to him in Morgan County in this state was attached and substituted service was obtained upon him in Chicago, Illinois, the place of his residence. The court rendered judgment sustaining the attachment and entered a general judgment against the defendant, Richard H. Woods, in the sum of $1108.80, and as against the defendant, Weightstill Woods, an execution was ordered issued to be levied upon the property attached. Weightstill Woods appealed, (see Kinsley Bank v. Woods (Mo. App.) 61 S.W.(2d) 384), but the judgment against him was affirmed.

Thereafter, on the 5th day of December, 1933, a special execution was issued directing the sheriff of Morgan County to levy upon said property of the defendant, Weightstill Woods (hereinafter called the defendant). On January 8, 1934, said defendant filed a motion to quash the attachment writ, the levy and special execution for the reason that the proceedings and judgment rendered on January 13, 1932, were illegal and void; that the writ of attachment, levy and all subsequent proceedings were illegal and void; that the issuance of the special execution was beyond the power, authority and jurisdiction of the court. On the same day the court sustained the motion to quash and the plaintiff has appealed.

It is defendant's contention that the motion to quash was properly sustained, because the circuit clerk of Morgan County had no power or authority to issue an original writ of attachment and summons to the sheriff of Cook County, Illinois, commanding him to attach the said defendant's lands, tenements, goods, chattels, etc.; that the service of such a writ of attachment and summons did not notify said defendant that his property in Morgan County had been attached by the sheriff of that county; that said circuit clerk was not authorized to issue the original process to the sheriff of a foreign state; that section 748, R. S. 1929 (Mo. St. Ann. § 748, p. 971), "merely provides that plaintiff, himself, may cause a copy of the petition filed and copy of the summons issued to the local sheriff to be delivered to a defendant residing or being in a foreign state"; that the writ of attachment and summons were served by a deputy sheriff of Cook County, Illinois, and that a deputy sheriff can only lawfully serve process in the name of the sheriff, whereas, the return of the deputy sheriff shows that he served it in his own name; that the judgment was rendered on January 13, 1932, at a time when the court was not in session; that it had no jurisdiction to render the judgment and, therefore, it is void.

It will be found from an examination of the opinion of this court in the former appeal that some of the contentions now raised by the defendant were directly passed upon by this court and decided against him. An examination of the opinion in that case also will show that practically all, if not all, of the many points raised by the defendant went to the question of jurisdiction of the court to proceed as against him. There is no excuse...

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