Martin v. Castle
| Decision Date | 31 May 1904 |
| Parties | MARTIN v. CASTLE et al., Appellants |
| Court | Missouri Supreme Court |
Appeal from Andrew Circuit Court. -- Hon. A. D. Burnes, Judge.
Reversed and remanded.
Booher & Williams, Elizur S. Castle, Charles L. Simmons and Vinton Pike for appellants.
(1) The case admits that the justice of Nodaway township had jurisdiction of the suits against plaintiff, as that township adjoined the one in which plaintiff resided. The fact that the summons (directed to the Nodaway constable) was served in Rochester township signifies nothing. The summons could have been directed to the constable of Nodaway or of Rochester and served in any township of the county. Friar v McGuire, 70 Mo.App. 586; R. S. 1889, sec. 2380. It was sufficient that the service was had in Andrew county and the return shows that it was. 8 Bac. Abridg., 351; Huhn v Lang, 122 Mo. 600; R. S. 1889, secs. 6125, 6145, 6146; Ins. Co. v. Reisinger, 43 Mo.App. 571. (2) It is not required that the docket of the justice or the papers in the case should show the residence of the parties. R. S. 1899, sec. 6131. The docket of a justice is evidence only of such matter as he is required by law to place there. Brown v. Pearson, 8 Mo. 160; Palmer v. Hunter, Idem, 512; State v. Carroll, 9 Mo.App. 277. Any other fact essential to jurisdiction may be established by evidence aliunde. Levy v. Ferguson, 61 Ark. 317; Visart v. Bush, 46 Ark. 153; Jolley v. Foltz, 34 Cal. 321; Karnes v. Alexander, 92 Mo. 660; Harris v. Hunt, 97 Mo. 571. (3) It was the opinion of the court below that the docket and files of the justice should affirmatively show residence and that the townships adjoined. Section 6131 enumerates but nine facts which the justice is required to state in his docket, and the residence of the parties is not one of them. The fact of residence must exist, but proof of it is not required to be made by record, or any particular character of evidence. (4) Justices' courts are not courts of record, and the validity of their judgments can not be tried by the technical rules applied to courts of record, superior or inferior. They are "popular tribunals" and "it would defeat the end of their organization if the rules of practice and pleading found necessary in courts of record were applied to their proceedings." Iba v. Railroad, 45 Mo. 472; R. S. 1899, sec. 4031. It will be presumed that the justice certifying or producing a docket is the proper custodian of it (9 Mo.App. 275); an ambiguous entry in his docket will be construed in favor of his jurisdiction (71 Mo. 398); and as to matter within his general jurisdiction the same presumption obtains as in respect to courts of record (117 Mo. 109 and 149). His jurisdiction is coextensive with his county (R. S. 1889, sec. 6125), which means that his process runs to the whole county (22 Mo.App. 112). The statute does not require him to record the fact which occasions the exercise of his power. It would be no evidence of the fact if he did record it. A recital of the fact would not conclude either party or prove anything. (5) If the original return of the constable had stated the facts set out in his amended return, plaintiff would be satisfied. If the return was lawfully amended plaintiff is concluded on this point. The court below treated the amended return as null and refused to declare that the justice had power and jurisdiction to allow it. The amendment was properly allowed. Kidd v. Dougherty, 59 Mich. 243; Fee v. Railroad, 58 Mo.App. 90; Com. Co. v. Estep, 63 Mo.App. 540. (6) It is settled beyond controversy that a sale will not be set aside for inadequacy of price unless it be so gross as to shock the conscience, or unless there be additional circumstances which would make it inequitable to allow the sale to stand. Keith v. Browning, 139 Mo. 196; Harlin v. Nation, 126 Mo. 102; Hardwick v. Hamilton, 121 Mo. 475; Walters v. Herman, 99 Mo. 532.
Dickson & Dickson, W. G. Hine, Chas. C. Crow and Eastin & Eastin for respondent.
(1) Even if appellants were permitted to direct the clerk to copy documentary evidence in the bill of exceptions, after it had been signed and filed, yet, in this case the record, as shown by the additional abstract, does not show that any of the documents were received in evidence. Stone v. Baer, 82 Mo.App. 339; McNeil v. Ins. Co., 30 Mo.App. 307; Martin v. Nichols' Est., 63 Mo.App. 342. (2) The bill of exceptions is not properly authenticated or identified. Reno v. Fitz Jarrell, 163 Mo. 411. (3) Conceding for the purpose of argument that the case is before the court on its merits, still the judgment must be affirmed because the court found that the price paid for the land at the sheriff's sale was so inadequate as to justify the interference of a court of equity. Davis v. McCann, 143 Mo. 172; Durfee v. Moran, 57 Mo. 374; Railroad v. Brown, 43 Mo. 294; Phillips v. Stewart, 59 Mo. 491. (4) Conceding the record to be before the court, the sheriff's deed was void: (a) Because the constable's returns on the summons do not show service on the defendant. (b) Because the returns fail to show that the defendant was a resident of the township, in which the suits were brought, or an adjoining township. (c) Because the whole record fails to show jurisdiction over the person of the defendant, or the subject-matter of the action. 12 Am. and Eng. Ency. of Law (1 Ed.), 148; 12 Am. and Eng. Ency. of Pleading and Practice, 669-72; Bank v. Doak, 75 Mo.App. 332; Electric Co. v. Corby, 61 Mo.App. 630; Corrigan v. Morris, 43 Mo.App. 456; Jones v. Railroad, 52 Mo.App. 381; McQuid v. Lamb, 19 Mo.App. 153; Hessey v. Heitcamp, 9 Mo.App. 36; Olin v. Zergler, 46 Mo.App. 193; Haggard v. Railroad, 63 Mo. 302; Williams v. Browning, 45 Mo. 475; Rollins v. Railroad, 89 Mo. 180.
This is a suit by plaintiff against the heirs of his deceased wife, Mary E. Martin, who was seized during her coverture with plaintiff of an interest in the lands described in the petition, which were partitioned after her death and one hundred and forty-eight and one-half acres of land involved in this litigation, and other lands, were allotted to her heirs, but as to all other lands except said one hundred and forty-eight and onehalf acres, plaintiff disclaimed any interest therein at the trial.
The plaintiff and his wife Mary during their coverture borrowed large sums of money and executed their notes to secure its payment. Several of these notes were unpaid at the time of her death on June 5, 1887.
These notes were assigned to E. S. Castle, Charles F. Booher and Isaac R. Williams, who obtained three several judgments upon them against plaintiff before a justice of the peace of Nodaway township in Andrew county. Executions were issued by the justice and nulla bona returns made, transcripts were filed in the office of the clerk of the circuit court, executions issued thereon, and all the right, title and interest of plaintiff in said lands, including the one hundred and forty-eight and one-half acres in suit, sold and purchased by Lydia V. Castle, Martha Carron, Phillip N. Brown, Asa Roy Martin and Samuel F. Brown, and a deed in due form of law was made to said purchasers by the sheriff. The grantees in the sheriff's deed are in possession of the lands through their tenant.
The purpose of this suit is to recover possession of the land, claiming an estate by curtesy therein; the cause was tried upon his third amended petition. The petition contains two counts. In the first count he says that his notes were purchased by Castle and Booher and Williams nominally and for the use and benefit of the defendants who purchased at the execution sale. That in order to prevent bidding they represented that the plaintiff had no interest in the lands to be sold; that the notes were given for debts of Mary E. Martin and the money used to improve her land, and that by the means above stated they did prevent bidding at the sale of said lands and caused the same to be sacrificed.
It is also alleged that the defendants caused an execution on another judgment obtained by them against plaintiff to be levied on these lands and the lands advertised for sale, whereby it is claimed defendants are estopped to claim any title under the former execution sales.
In the second count it is alleged that the three judgments obtained before the justice of the peace were void because suits were not brought in a township in which plaintiff resided, but were brought in Nodaway township and service of process had in Rochester township, and it nowhere appears in the record that Nodaway and Rochester townships adjoined. It also alleges that Booher, Castle and Williams were not the real parties in interest in said judgment, but that they were agents and attorneys of the defendants and were acting for them in obtaining said judgments and in the execution thereon.
The answer admits the marriage of Mary E. Martin, the birth of issue, that Williams is the curator of Asa Roy Martin, and that Booher, Williams and Castle obtained judgments against the plaintiff, and under them had the land in suit levied upon and sold, and the sheriff made the purchasers a deed therefor. It further alleges that at the sheriff's sale, plaintiff well knowing the title he had in said real estate and the fact that the same was about to be sold, stood by at said sale, made no objection thereto, saw the property sold and received the benefit of the credit of the purchase price upon the judgments against him; whereby he is estopped from asserting that the judgments, executions, or sale were in any way informal, irregular or void.
The answer of the defendants, by the way of cross-bill, sets forth that their father, Francis M. Brown, died possessed of personal property...
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