Lackland v. Pritchett

• Decision Date: 31 October 1849
• Citation: 12 Mo. 484
• Parties: LACKLAND v. PRITCHETT.
• Court: Missouri Supreme Court

12 Mo. 484

LACKLAND

v.PRITCHETT.

Supreme Court of Missouri.

October Term, 1849.

APPEAL FROM ST. LOUIS COURT OF COMMON PLEAS.

This was an action of debt brought by Pritchett against Lackland, upon a judgment rendered by the Circuit Court in the county of Shelby and State of Tennessee, on the 2nd day of June, 1845. The said Lackland pleaded the statutory plea of the general issue, and on the trial in the court below, which was submitted to the court sitting as a jury, the plaintiff offered in evidence a paper purporting to be a transcript of said Circuit Court in Tennessee, to the reading of which in evidence the defendant objected. The court overruled the objection and permitted said transcript to be read in evidence, to which the defendant excepted. The said transcript contains a commission from the Governor of Tennessee to John C. Humphreys, appointing him special judge for said Circuit Court, for the February term, 1845; but said commission does not state that the great seal of the State of Tennessee was thereto attached, and it appears from said transcript that at said February term there was pending a suit wherein said Pritchett was plaintiff and one James W. Goslee was defendant; that said Lackland was summoned as a witness in said suit, and he not appearing to testify in said cause, a judgment nisi was taken against him for $125 in favor of said Pritchett as a forfeiture, unless he appeared at the June term, 1845, of said court, and show cause to the contrary, and that said Lackland be notified of the fact by scire facias. The scire facias was issued and delivered to R. A. Allen, deputy sheriff, executed by him as deputy, and returned by him in his own name as deputy sheriff, and at said June term said Lackland not appearing, said judgment was made final. The Court of Common Pleas found a verdict for the plaintiff for $125 debt, and $38 20 damages, and rendered judgment in accordance to said verdict on the 28th November, 1848. The defendant made a motion for a new trial on said day, and on the 10th of December, 1848, the said court gave leave to said plaintiff to amend his declaration by erasing “which plaintiff says amounted to the sum of $10,”” and the plaintiff entered a remitter for $12, and then the court overruled the motion for a new trial.

LACKLAND & JAMISON, for Appellant.

1st. If a court render judgment in a case where it has not jurisdiction of the subject matter and of the parties, such judgment is null and void. Latham v. Edgerton, 9 Cowen, 227; Mills v. Martin, 19 Johns. 33; Borden v. Fitch, 15 Johns. 141; Slocum v. Wheeler, 1 Com. 429; Wilson v. Jackson, 10 Mo. R. 329. 2nd. To give jurisdiction to the court over a party defendant, it is necessary that he should be duly served with process to appear and defend, unless he voluntarily appears. Hall v. Williams, 6 Pick. 246; Aldrich v. Kinney, 4 Com. 380; Bissell v. Briggs, 9 Mass. R. 444; Hollingsworth v. Barbour and others, 4 Peters, 472; Story's Com. on Conflict of Laws, 1004, 3rd ed., § 609. 3rd. The judgment rendered in the Tennessee Circuit Court, and upon which this suit is brought, is null and void. 1. Because there was no legal service of the writ of scire facias, nor any appearance of said Lackland in said suit in Tennessee; nor had he any personal notice of said suit. The scire facias was delivered to R. A. Allen, deputy sheriff, received by him as deputy, executed and returned by him in his own name as deputy sheriff. Harrison et al. v. The State, 1 Mo. R. 358; Atwood v. Reyburn, 5 Mo. R. 358; Ditch v. Edwards, 1 Scam. 127; Ryan v. Eads, Breese 168; Simons v. Catlin, 2 Caine, 66; Snellgrove v. Branch Bank, 5 Ala. R. 295; 2 Jacobs' Law Dict., title Deputy, p. 251; Wood's Just. 74; Evans v. Wilder, 7 Mo. R. 362; Evans v. Ashley, 8 Mo. R. 177, 182; State v. Edwards, 4 Humphrey, 228; Stewart v. Cave, 1 Mo. R. 540. The return of the officer is the competent evidence of the service of the writ. Perry v. Daver, 12 Pick. 212. 2. The return on the scire facias does not show how and where the writ was executed. Charless v. Marney, 1 Mo. R. 382; Ogle v. Coffey, 1 Scam. 239; Perry v. Daver, 12 Pick. 211; Weaver v. Springer, 2 Miles, 42; Davis v. Maynard, 9 Mass. R. 236; Inhabitants of Lancaster v. Pope, 1 Mass. R. 87. 3. That the subpoena in the case of said Pritchett v Goslee was not directed to the sheriff or any officer of the county where said Lackland resided, according to law. Stat. of Tenn. by Caruthers & Nicholson, p. 711, title Witness, ch. 1, § 28. 4. That said Lackland was not summoned as a witness in said suit at the instance of said Pritchett according to law. See the last reference. 5. The said Lackland not being a resident of the State of Tennessee when he was summoned as a witness in said suit of Pritchett v. Goslee, he was not liable to said forfeiture for not appearing as a witness in said suit. Stat. of Tenn., pp. 711, 712, title Witness, ch. 1, §§ 28, 29, 30, 31, and p. 243, title Depositions, ch. 1, § 1. 6. That the commission of the Governor of Tennessee, appointing John H. Humphreys special judge, is not under the great seal of the State as by law required. It does not appear what seal of State is thereto attached. All his acts as judge are, therefore, null and void. Art. 3, § 16; art. 6, § 11 of Constitution of Tennessee, printed in the Statutes of Tennessee by Caruthers & Nicholson, pp. 54, 56. See Stat. of Tenn., p. 239, ch. 68, § 3. 7. That the penalty was not assessed by a jury as by law required. Constitution of Tenn. ch. 6, § 14; said Stat. p. 57; George v. Murphy, 1 Mo. R. 558. 4th. There is a variance between the declaration and the said Tennessee transcript, which is fatal. The declaration is for $125 and costs, not specifying any sum. Ferguson v. Frizel et al, 1 Mo. R. 441; Gile v. Shaw, Breese, 87; Biffins v. Naxon, 4 Wend. 207; Wash v. Foster, 3 Mo. R. 205. 5th. The transcript does not contain all of the record of the said Tennessee suit. The subpoena in the case of said Pritchett v. Goslee, should be set out in the transcript. 6th. The Court of Common Pleas erred in permitting the plaintiff to amend his declaration after the judgment was rendered. Rev. Stat. of Mo., 1845, Practice at Law, art. 6, § 3, p. 430.

CROCKETT & WHITTLESEY, for Appellee.

1. The judgment below was properly given; there was personal service on the defendant in Tennessee, and he cannot now question the judgment of the Shelby Circuit Court or its effect. See Mills v. Durgle, 7 Cranch; 2 Hare & Wallace, Am. Ld. Ca. 538. 2. The court did not err in permitting the plaintiff to amend. Neidenberger v. Campbell, 11 Mo. R. 359. 3. Defects in records and proceedings cannot be taken advantage of collaterally. McNair v. Biddle, 8 Mo. R. 257.

NAPTON, J.

The declaration in this case is upon a judgment of the Circuit Court of Shelby county, Tennessee, for $125 and costs, rendered in 1845. The declaration sets out the judgment under a prout patet per recordam, as a judgment for $125, together with the plaintiff's costs in that behalf expended, which are averred to amount to the sum of $10.

The record offered in evidence under the statutory general issue, showed a judgment for $125 and costs, but no amount of costs was...