Mesker v. Cornwell

• Decision Date: 30 November 1909
• Citation: 123 S.W. 488
• Parties: MESKER v. CORNWELL.
• Court: Missouri Court of Appeals

123 S.W. 488

MESKER v. CORNWELL.

St. Louis Court of Appeals. Missouri.

November 30, 1909.

1. JUDGMENT (§ 436) — DEFAULT JUDGMENT — RESTRAINING ENFORCEMENT — GROUNDS — NEGLIGENCE.

A plaintiff in equity to restrain the enforcement of a default judgment against him must show that he was not careless in omitting to defend the action in which the judgment was given.

2. JUDGMENT (§ 435) — DEFAULT — RESTRAINING ENFORCEMENT — GROUNDS — MISTAKE.

Where a garnishee in two actions could by the slightest attention to the processes served have known that the garnishments were in different cases, and he permitted default judgment against him in one case by reason of the mistaken belief that the plaintiff in the other action was judgment creditor in both actions, and that an arrangement had been made with such plaintiff for a settlement, equity could not restrain the enforcement of the judgment though the principal defendant had informed the garnishee that the garnishment matters had been settled.

3. JUSTICES OF THE PEACE (§ 87) — GARNISHMENT — JUDGMENT — EVIDENCE.

Where the garnishing creditor in justice's court did not, on the default of the garnishee, ask the justice to attach the garnishee and compel him to make full disclosures as authorized by Rev. St. 1899, § 3464 (Ann. St. 1906, p. 1987), the justice must hear proof of the indebtedness of the garnishee to the principal defendant and determine the cause from the testimony as provided by section 3967 (page 2178) before rendering judgment against the garnishee.

4. JUSTICES OF THE PEACE (§ 128) — JUDGMENT AT LAW — RESTRAINING ENFORCEMENT — GROUNDS.

The act of a justice of the peace in giving judgment against a defaulting garnishee, without hearing proof of his indebtedness to the principal defendant as required by Rev. St. 1899, § 3967 (Ann. St. 1906, p. 2178), is a mere irregularity of procedure, and, in the absence of fraud or surprise in procuring the judgment, equity cannot restrain its enforcement.

Error to St. Louis Circuit Court; Matt G. Reynolds, Judge.

Action by Frank Mesker against Fred L. Cornwell. There was a judgment for defendant entered on sustaining a demurrer to petition, and plaintiff brings error. Affirmed.

R. M. Nichols, for plaintiff in error. Richard A. Jones, for defendant in error.

GOODE, J.

This appeal was taken from final judgment entered on a demurrer to plaintiff's petition. The action is one in the nature of a suit in equity to restrain the enforcement of a judgment given against the plaintiff as garnishee. Defendant Cornwell is the judgment plaintiff, defendant Neihaus the judgment debtor and S. J. Young was a constable of the city of St. Louis, in whose hands an execution had been placed which he threatened to levy on plaintiff's property. The facts stated are these:

Cornwell obtained judgment August 31, 1907, before a justice of the peace of the city of St. Louis, against Neihaus, on a promissory note for $250, dated August 3, 1905. After the rendition of that judgment plaintiff was summoned as garnishee, to wit, on October 14, 1907, to appear October 29th, to answer interrogatories that might be exhibited to him. On April 13, 1907, or more than four months prior to the institution of the action by Cornwell, Leo C. Hadley instituted a suit against Neihaus before a justice of the peace on a promissory note, and obtained judgment against him April 26, 1907, for $218.50. Plaintiff was summoned as garnishee on that judgment, but at what date is not stated in the petition. Plaintiff alleges he became confused about the two garnishments, forgot Cornwell was plaintiff and judgment creditor in one of them, and believed both causes of action had been instituted by Hadley. Therefore he took up the matter with Hadley and reached an understanding with him that he would cease all further proceedings, and plaintiff believed the agreement covered both of said suits in which he had been summoned as garnishee, that they had been settled, and there was no use for him to appear before the justice to answer interrogatories. It is further alleged plaintiff was informed by Neihaus "all of said matters had been fully settled, all parties had been satisfied, and no further proceedings would be taken thereon." The dates when these understandings were reached between plaintiff and Hadley and plaintiff and Neihaus are not stated, but plaintiff says he relied on the statement of Neihaus and on his belief that Hadley was the plaintiff in both actions against Neihaus, and therefore paid no further attention to the Cornwell garnishment. On November 22, 1907, said garnishment proceeding was called by the justice "a default taken against plaintiff, and without setting said matter down for inquiry, and without any evidence as to plaintiff's liability on the indebtedness to said Neihaus the said justice proceeded to and did render judgment against plaintiff herein for $281.40 in favor of defendant Fred L. Cornwell." Plaintiff avers he did not then and does not now owe Neihaus anything, and the judgment was wholly without merit and unjust; was rendered on account of plaintiff's omitting to take the proper steps to prevent it by reason of his forgetfulness as aforesaid, his belief that Hadley was judgment creditor in both judgments given by the justice of the peace against Neihaus, and in reliance on the representation the matters had been finally settled and disposed of and plaintiff need pay no further attention to them. It is further averred plaintiff...