Meyer v. Hartman

• Decision Date: 12 June 1883
• Citation: 14 Mo.App. 130
• Parties: HENRY MEYER, Defendant in Error, v. WILLIAM HARTMAN, Plaintiff in Error.
• Court: Missouri Court of Appeals

14 Mo.App. 130

HENRY MEYER, Defendant in Error,

v.WILLIAM HARTMAN, Plaintiff in Error.

St. Louis Court of Appeals, Missouri.

Jun. 12, 1883.

APPEAL from the St. Louis Circuit Court, THAYER, J.

Reversed and remanded.LOUIS GOTTSCHALK, for the plaintiff in error: Want of service of notice, or that appearance by attorney was unauthorized, may be shown to impeach a foreign as well as domestic judgment.-- Marx v. Fore, 57 Mo. 69. And this can be done, even though the jurisdiction of the court over the person appeared affirmatively from the record.-- Eagler v. Stover, 59 Mo. 87; Corbey v. Wright, 4 Mo. App. 443; Napton v. Leaton, 71 Mo. 358.

W. C. JONES, for the defendant in error: The appeal or writ of error must be regarded not as a new suit, but rather as the continuation of an old one. Freem. on Judg., sect. 569. “When the court has jurisdiction of the cause, and of the parties, and only proceeds erroneously, the judgment, notwithstanding such error, is binding until it is vacated or reversed.”-- Smith v. Knowlton, 11 N. H. 191.

THOMPSON, J., delivered the opinion of the court.

This was an action upon a judgment rendered in favor of the plaintiff and against the defendant in 1876, in the circuit court of Randolph County, Illinois. The answer admits the rendition of the judgment, but denies that the defendant appeared in his own proper person or by attorney. On the contrary, it alleges that the suit was begun in that court in 1874; that such proceedings were had, that at a trial in 1874, at which the defendant appeared, a judgment was rendered in his favor; that afterwards the plaintiff appealed to the supreme court of Illinois, and that, in 1876, the judgment was reversed and the cause remanded. The answer then states that it is provided by section 84, of chapter 110, of the Revised Statutes of Illinois of 1874, that when a cause or proceeding is remanded by the supreme court, upon the transcript of the order of the supreme court remanding the same being filed in the court from which the cause or proceeding was remanded, and not less than ten days' notice thereof being given to the adverse party or his attorney, the cause or proceeding shall be reinstated therein; and that in case of non-resident parties, or parties who can not be found so that personal notice can not be served upon them, the notice may be given as in cases in chancery, or as may be directed by the court; and, that it is further provided by the laws of Illino is that in case of non-residents of the state, in chancery proceedings, notice of the commencement or pendency of suit shall be given by publication in some newspaper. The answer then alleges that the defendant is, and ever since the year 1874, has been a resident and citizen of the state of Missouri, and that no notice whatever was given to him of the filing of the transcript of the supreme court in the office of the clerk of the circuit court of Randolph County, or of any of the facts required by law; that neither he nor his attorneys received notice of any such facts, either personally or by publication, or otherwise; and that neither he nor they did, in fact, know of the filing of the said transcript, or of the redocketing of said cause, or of any application for that purpose. Wherefore the defendant says that the circuit court of Randolph County had no jurisdiction to render the judgment, and that it is void.

On motion of the plaintiff the circuit court rendered a judgment in his favor and against the defendant, notwithstanding the answer. And the propriety of this ruling is what we have to consider.

The following propositions of law must be regarded as settled in this State: that a judgment rendered without notice is void ( Anderson v. Brown, 9 Mo. 646; Roach v. Burnes, 33 Mo. 319); that advantage may be taken of such a judgment in a collateral proceeding ( Abbott v. Sheppard, 44 Mo. 273; Higgins v. Peltzer, 49 Mo. 152); that the fact that the judgment was rendered without notice, or upon an appearance of an attorney which was not authorized, may be shown to impeach a foreign as well as a domestic judgment ( Marx v. Fore, 51 Mo. 69), and that this can be done, even though the jurisdiction of the court over the person appears affirmatively by its record. Eager v. Stover, 59 Mo. 87; Napton v. Leaton, 71 Mo. 358, 367.

So far as we can ascertain, the Illinois statute which is set out in the answer, is a recent one. It does not appear to have been construed by the supreme court of that state. Prior to its passage it had been held in that state, that when a cause is remanded from the supreme to the circuit court, it may be redocketed in the circuit court and there proceeded with, without giving any notice to the opposite party. Murray v. Whittaker, 17 Ill. 230; Renugh v. McConnell, 36 Ill. 375. The statute was probably passed to remedy the evils which were found to flow from this rule. But whether it is to be so construed as to mean that the giving or publishing of notice, according to its terms, before the reinstating, in the circuit court, of a cause which has been remanded from the supreme court, is a step necessary to reinvest the circuit court with jurisdiction to proceed, so that, if the step is not taken, the subsequent proceedings will be void, or whether it is such a step, that the failure to take it will be merely an error or irregularity, which can only be taken advantage of in a direct proceeding to vacate the judgment, is a very important and difficult question. In our former opinion we did not feel called upon to decide this question, as, in the view we then entertained, it was not clearly...