McCloon v. Beattie

Decision Date31 August 1870
CourtMissouri Supreme Court

Appeal from Fifth District Court.

Bassett, Van Waters & Pike, for appellant.

No court can rightfully render judgment in a cause until it has acquired complete jurisdiction over the parties, the subject-matter and the process. Judgment rendered without such jurisdiction is void. (Penobscot R.R. Co. v. Weeks, 52 Me. 456; Sanders v. Rains et al., 10 Mo. 770; Caldwell v. Lockridge, 9 Mo. 368; Bigelow v. Stearns, 19 Johns. 39; Smith v. Rice, 11 Mass. 507; Corwin v. Merritt, 3 Barb. 345; 26 Conn. 273; Smith v. McCutchen, 38 Mo. 416; 12 Ill. 358.) The record of inferior courts should affirmatively show jurisdiction. (Burch v. Schneider, 27 Mo. 101; State v. Metzger, 26 Mo. 65; 9 Wheat. 541; 6 Mo. 64, 74; Frees v. Ford, 2 Seld. 176; 2 How. 309; 11 Wend. 648, 653; 1 Hill, 130; 3 Mo. 302.)

Strong & Chandler, for respondent.

BLISS, Judge, delivered the opinion of the court.

The plaintiff sued out before a justice of the peace of Buchanan county a writ of attachment against one Austin, and summoned defendant Beattie as garnishee. Beattie appealed to the District Court from the judgment rendered against him, when again the plaintiff recovered judgment, and the case is brought here after an affirmance by the District Court.

The record is attacked for various errors and irregularities both before the justice and in the Circuit Court; but we will only consider one. It does not appear that the debtor, Austin, was ever brought into court. He was not found, and never appeared, and the return of the constable to the order of publication shows that it was “executed by posting in four public places,” etc. This is no execution of the order. The return should have shown that the notices or advertisements were posted up in four public places in the proper county, twenty days before the day when the defendant is notified to appear; and it is sufficient if the correct period appears by the officers specifying the time when the notices were posted. But it must affirmatively appear that the notice has been given according to law, or the justice obtains no jurisdiction over the absent debtor. “Jurisdiction will be presumed as to courts of general authority, but as to inferior courts it is different, and those who claim rights or exemptions under their proceedings must show their jurisdiction.” (State to use, etc., v. Baldwin, 27 Mo. 103; State v. Metzger, 26 Mo. 65.) No jurisdiction having been obtained of the person of Austin, the judgment against him is simply void, and can not sustain a judgment against a garnishee, and such judgment would be no defense if pleaded to a new action upon his supposed indebtedness to Austin.

Irregularities in obtaining the judgment against the principal debtor, provided jurisdiction is obtained of the...

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    • United States
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    ...appointing a guardian is essential, and the fact that it assumed jurisdiction must appear by the record. R. S. 1879, sec. 2562; McCloon v. Beatty, 46 Mo. 391; Schell Leland, 45 Mo. 289. (8) Not even enough appears to authorize the entry of an order nunc pro tunc appointing a guardian. Pries......
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    ...... the judgment, though it stood indifferent between the. parties. Hedrix v. Hedrix, 103 Mo.App. 40; McCloon". v. Beattie, 46 Mo. 391. . .          . OPINION. [142 S.W. 454] . .           [161. Mo.App. 122] NIXON, P. J. . .   \xC2"......
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