McClure v. Wells

• Decision Date: 31 July 1870
• Citation: 46 Mo. 311
• Parties: FRANCIS A. MCCLURE, Plaintiff in Error, v. VIRGINIA E. WELLS, ADMINISTRATRIX, ETC., AND R. H. WALKER, Defendants in Error.
• Court: Missouri Supreme Court

46 Mo. 311

FRANCIS A. MCCLURE, Plaintiff in Error,

v.VIRGINIA E. WELLS, ADMINISTRATRIX, ETC., AND R. H. WALKER, Defendants in Error.

Supreme Court of Missouri.

July Term, 1870.

Error to Third District Court.

Phelps, for plaintiff in error.

The Circuit Court, after an appeal from the decision overruling the motion to set aside the judgment, acted properly in permitting the sheriff to amend his return. The cause decided at September term, 1866, was not before the court.T. A. Sherwood, for defendants in error.

I. The service upon Walker, being by the deputy sheriff in his own name, was absolutely void, and the Circuit Court acquired no jurisdiction over him, and should have set aside the judgment on his motion. (Harriman et al. v. The State, 1 Mo. 504; 8 Bac. Abr. 671, tit. Sheriff.)

II. The return of the sheriff on the summons was matter of record, and no motion for new trial or exception was necessary in order to the examination of the sufficiency of that return, or of the error committed in refusing to set aside the judgment based thereon. (Cabeen v. Douglas, 1 Mo. 336; Walsh v. Agnew, 12 Mo. 520; West v. Miles, 9 Mo. 167; Bateson v. Clark, 37 Mo. 31; Nordmanser v. Hitchcock, 40 Mo. 178; id. 602; Hann. & St. Jo. R.R. Co., 42 Mo. 467; Peyton v. Rose, 41 Mo. 257; Jones v. Fuller, 38 Mo. 363; State v. Matson, id. 489.)

III. It was not competent for the sheriff to make an amendment to the return of his deputy: first, because the record shows that he had never performed the service (McKnight v. Connell, 14 La. 396); second, because the case, as now presented, was then pending in the District Court. (Ladd v. Cousins, 35 Mo. 513; Stewart v. Stringer, 41 Mo. 400.)

CURRIER, Judge, delivered the opinion of the court.

This is a proceeding by motion to set aside a judgment by default. The judgment sought to be set aside was rendered by the Cedar County Circuit Court at its September term, 1866. At the succeeding March term, Walker, one of the defendants, moved the court to set the judgment aside, basing the motion upon the assumed ground that the court rendering it had no jurisdiction of his person. The motion was overruled, and Walker excepted. A bill of exceptions was subsequently filed, and an appeal taken to the Third District Court.

What the District Court did with the motion and the judgment of the Circuit Court upon it, does not distinctly appear. The whole record is distressingly involved, confused, and repetitious. While it contains a mass of irrelevant matter, it fails to show whether the District Court either affirmed or reversed the judgment which was appealed from. In fact, that judgment seems to have escaped the notice of the court. No allusion is made to it in the opinion filed in the cause. The opinion seems to treat the case as though the appeal had been taken from the original judgment. That judgment is referred to, and the antecedent proceedings declared insufficient to sustain it; and that seems to be the judgment which the court undertook to reverse. As already remarked, no reference is made to Walker's motion to set aside, or to the subsequent proceedings of the Circuit Court upon that motion.

The District Court held that the original judgment was unwarranted, upon the ground that the return of service of process upon Walker was not properly authenticated. The defect of the return, as the District Court declares, consists in this: that it was signed by “John Butler, deputy sheriff,” and not by or in the name of the principal sheriff. But where did the court get that fact? It does not appear in the bill of exceptions. The bill of exceptions purports to contain a copy of the original judgment and a mass of other matter, but wholly omits the original summons, as also the return upon it. If the...