Miners' Bank v. Kingston

• Decision Date: 11 June 1907
• Parties: MINERS' BANK v. KINGSTON et al.
• Court: Missouri Supreme Court

103 S.W. 27

204 Mo. 687

MINERS' BANK v. KINGSTON et al.

Supreme Court of Missouri. Division No. 2.

June 11, 1907.

1. JUDGMENT — REVIEW — ESTOPPEL.

In a proceeding to review and to vacate a judgment in an attachment suit, in which the petitioner had not been personally served and did not appear personally or by attorney, the fact that the petitioner had actual knowledge of the pendency of the action did not estop her from availing herself of the right to claim a review upon a proper and timely showing.

2. SAME — GROUNDS OF REVIEW — FAILURE TO GIVE PROPER NOTICE OF ATTACHMENT TO TENANTS.

The fact that actual tenants of real property levied on under a writ of attachment were not notified of the attachment 10 days before the return of the writ is a sufficient ground for sustaining a timely and otherwise sufficient application for review of the judgment in the attachment suit.

3. SAME — SUFFICIENCY OF EVIDENCE.

On an application for review and to set aside a judgment rendered without personal service on applicant and without an appearance by her, evidence considered, and held sufficient to sustain an order for a review.

4. SAME — ORDER FOR REVIEW — CONDITIONS.

An order for a review of a case in which judgment was rendered on a default without personal service is not sufficient if setting aside the judgment is not conditioned on defendant's answering or demurring to the petition on which the judgment was rendered within a reasonable time.

Appeal from Circuit Court, Jasper County; Hugh Dabbs, Judge.

Petition of Hannah M. Kingston for review of an action by the Miners' Bank against petitioner and T. H. Kingston. From a judgment for petitioner, the bank appeals. Affirmed.

This cause is here upon appeal by the plaintiff from a judgment of the circuit court of Jasper county, Mo., sustaining a petition for review and setting aside a judgment rendered in an attachment proceeding in favor of the plaintiff and against these defendants.

This is an action instituted by petition in the circuit court of Jasper county, before the Honorable Hugh Dabbs, on the 25th day of November, 1903, for review of a judgment rendered in said cause on the 4th day of March, 1903, which said judgment was in favor of the Miners' Bank against T. H. Kingston and Hannah M. Kingston, partners doing business under the firm name of T. H. Kingston & Co., wherein the Miners' Bank brought suit by attachment and attached a lot and a part of another lot in the city of Joplin to satisfy a claim against T. H. Kingston & Co. for the sum of $457.35. The plaintiff in the attachment suit brought its suit on the 14th day of June, 1902. In its petition it alleged that the defendants were nonresidents of the state of Missouri, and also in its affidavit for attachment alleged that the defendants were nonresidents of the state of Missouri, and as a second ground of attachment that T. H. Kingston had fraudulently conveyed his property and effects so as to hinder and delay his creditors. The case was returnable to the September term, 1902. The clerk omitted to issue an order of publication for that term. At the September term, 1902, an order of publication was obtained against the said defendant, returnable to the March term, 1903. The real estate, lot 37 and the south 30 feet of lot 36 in Gray's Second addition to Joplin, was attached on the 14th day of June, 1902. On January 2, 1903, the sheriff of Jasper county served a notice upon M. B. Coburn and Annette Coburn, notifying them that those lots had been attached and levied upon by virtue of a writ of attachment which was originally returnable to the September term, 1902, and that the property was attached as the property of T. H. Kingston and Hannah M. Kingston; but, owing to the fact of the failure to obtain service upon the defendants by publication, that the same would be triable at the March term, 1903. Publication was made in due form more than 15 days before the first day of the March term, 1903. The real estate was afterwards sold under special execution. Then, on the 25th day of November, 1903, the defendant Hannah M. Kingston instituted suit against the plaintiff for a review of judgment. In her petition she alleged "that on the 4th day of March, 1903, the Miners' Bank obtained a judgment for $430.08 on the first count of its petition and $40 on the second count of its petition; that the said judgment so obtained by said plaintiff was in an attachment suit against the defendant Hannah M. Kingston and T. H. Kingston, and in said suit the said plaintiff caused to be attached the property before described; that the said plaintiff in its petition filed in said cause alleged, among other things, that the defendants, and each of them, were nonresidents of the state of Missouri, and could not be served with the ordinary process of law; that an order of publication in due form was thereupon issued to the clerk of this court, and the same was duly published in the Joplin Globe, a newspaper published in Joplin, Mo., at least once a week for four consecutive weeks, the last publication being at least 15 days before the first day of the March term, 1903, and the plaintiff so gave constructive notice to the defendants in said suit, but defendant further states that she had no actual notice of said suit, and no appearance was made by her or any one for her in said suit, and the said judgment was rendered against her upon default or failure to appeal and plead in said cause. The said defendant Hannah M. Kingston further states that she had and now has a meritorious defense against plaintiff's said suit, in this: that the plaintiff's said suit was founded upon a certain promissory note executed to said plaintiff by said defendant T. H. Kingston for and in the name and on behalf of said T. H. Kingston & Co., a corporation then existing, and being composed of said T. H. Kingston and Frank Kingston, who were the sole partners in said firm; that the said plaintiff in its petition alleged and charged that the said firm of T. H. Kingston & Co. was composed of T. H. Kingston and Hannah M. Kingston, and alleged and charged that said defendant was one of the partners of said firm so executing said note, and jointly liable with the said T. H. Kingston. This defendant states that such allegation was not true, but that this defendant was not a partner in the firm of T. H. Kingston & Co., and had no interest in said firm, and had no interest or share in the consideration for said note, and this defendant further states that she has not at any time claimed to have any interest in said firm or its business, and has not held herself out to the plaintiff as a partner in said firm, and this defendant further states that she was not at the time of said suit or at any other time indebted to the plaintiff. Wherefore she asks the court to reopen and review the said cause and to discharge her hereof with judgment for her costs." The petition was sworn to. The answer of the defendant admitted that at the March term, 1903, it obtained a judgment against Hannah M. Kingston for $438.08 on the first count and $40 on the second count; admitted that the suit in which judgment was obtained was an attachment suit brought against Hannah M. Kingston and T. H. Kingston, and that in said suit caused to be levied upon lots 37 and south 30 feet of lot 36 in Gray's addition to the city of Joplin; admitted that said plaintiff in said petition alleged, among other things, that said defendants, and each of them, were nonresidents of the state of Missouri, and could not be served with process in this state; admitted that the order of publication in due form was thereupon issued and the same was duly published in the Joplin Globe, a newspaper published in Joplin, at least once a week for four consecutive weeks, the last publication being at least 15 days before the March term, 1903, of this court; admitted that the plaintiff so obtained constructive service upon the defendants to this suit, and the plaintiff admitted that no summons was served upon defendant in person and no appearance was made for her by any one, and that judgment was rendered upon her failure to appear and plead. The plaintiff denied the other allegations in said defendants' petition for review. "As a second defense, the plaintiff herein, answering, states: That the said lot 37 and the south 30 feet of lot 36 in Gray's Second addition to the city of Joplin, being the property levied upon by the plaintiff in this case, had been purchased with the individual money of the said T. H. Kingston, the other defendant herein, and that he, with intent to cheat and defraud his creditors, had the same deeded to his wife, Hannah M. Kingston, without any consideration whatever; that the said conveyance to his wife was made for the purpose of concealing and covering up his own property, and with the intent to hinder, delay, and defraud his creditors, all of which the said Hannah M. Kingston well knew; that, after the said property was conveyed to the said Hannah M. Kingston, the said T. H. Kingston and Hannah M. Kingston, with intent to cheat and defraud the creditors of Hannah M. Kingston and T. H. Kingston, without any consideration whatever, and with intent to hinder, delay, and defraud the creditors of T. H. Kingston, conveyed the property to the New England Home Buyers' Association of Boston. Third. The plaintiff, further answering to said petition of Hannah M. Kingston, states that on October 17, 1902, long prior to the time of the said suit of the bank against the defendants was tried, the defendant had actual notice of the pendency of said suit, and she carelessly and negligently failed to make a defense in said suit which she was entitled to make therein if she had desired to contest the same. Wherefore the plaintiff, having fully answered, asks that judgment be rendered in its favor by dismissing said defendant Hannah M. Kingston's petition for review." At the June term, 1904, the...