Mullins v. Rieger

• Decision Date: 14 October 1902
• Citation: 70 S.W. 4,169 Mo. 521
• Parties: MULLINS v. RIEGER.
• Court: Missouri Supreme Court

70 S.W. 4

169 Mo. 521

MULLINS v. RIEGER.

Supreme Court of Missouri, Division No. 1.

October 14, 1902.

JUDGMENTS—COLLATERAL ATTACK—IMPEACHMENT.

1. Where one of several defendants was not served with process, an answer of defendants, without naming them, which makes no reference to defendant not served, can only be regarded as the answer of the defendants duly served, and cannot be deemed as an entry of the voluntary appearance of the defendant not served, so as to give the court jurisdiction over him.

2. In a suit to annul a judgment rendered against plaintiff and set aside an execution sale under it for want of jurisdiction, plaintiff testified that he was not served with process in the action in which the judgment was rendered, and entered no appearance therein, nor filed an answer therein. The court roll in that action showed, by the sheriff's return, that he was not served with process. The answer of the other defendants in the action was made without naming the defendants, and made no reference to defendant not served. Defendants' attorneys did not intend to answer for defendant not served, nor had they any authority so to do. Held, that the court roll and the evidence independent thereof were admissible to impeach a recital in the judgment that the parties to the action appeared by their respective attorneys, and that all the matters therein were heard and considered: the recital not being an absolute verity in a suit to annul the judgment for want of jurisdiction.

3. The fact that the petition in a suit to annul a judgment and set aside an execution sale under it for want of jurisdiction contained a count in ejectment for the possession of the land sold under the execution, did not render applicable the doctrine that recitals in a judgment import absolute verity, even though the doctrine would be applicable if the count in ejectment stood alone.

4. A petition in a suit to annul a judgment and set aside an execution sale under it for want of jurisdiction, in that defendant in that action was not served with process, nor made any appearance therein, is not defective for failing to allege that recitals in the judgment showing an appearance by such defendant were fraudulently made, when it alleges the facts under which the judgment was rendered, and such facts constitute grounds for equitable relief.

Appeal from circuit court, Jackson county; E. P. Gates, Judge.

Action by John R. Mullins against Joel H. Rieger. From a judgment in favor of defendant, plaintiff appeals. Reversed.

Johnson & Lucas, for appellant. Edw. C. Wright, for respondent.

ROBINSON, J.

This is an action in two counts, the purpose of the first count being to have the court declare void a judgment against plaintiff in a prior proceeding, wherein he was named as one of the defendants, and to have set aside and for naught held a sheriff's deed to certain lands therein named, made by the sheriff at a sale under an execution issued upon said alleged void judgment, and to have removed the cloud cast upon the title of plaintiff's land by said sheriff's deed. The second count is in ejectment for the possession of the land named in said sheriff's deed.

In the first count of plaintiff's petition are set out the names of all the parties plaintiffs and defendants in the proceeding which resulted in the judgment against him, and which, by this proceeding, is sought to be annulled, and who of the defendants were served, and who not served. It is also alleged that no process in that action was ever issued for this plaintiff, and that none was ever served upon him, and that he did not enter his appearance therein either in person or by attorney, and that no answer was filed therein by or on his behalf; that in said action against himself and others an answer was filed in behalf of some of the defendants, but that he did not authorize the filing of same, nor did he employ the attorney for that purpose, nor did said attorneys intend, by filing of said answer, to enter the appearance of this plaintiff or plead for him in said action, and did not in fact enter his appearance or make a plea in his behalf. The petition also contained an averment to the effect that as soon as plaintiff learned of the sale of his land and its purchase by the defendant herein, he offered to refund to him the sum of $50 (the amount paid by defendant for the property at execution sale) and any additional sum by way of expenses that he might have been to in the premises; and that the defendant refused to accept same, but asserted that he was the owner of the property, and entitled to its use and enjoyment, and refused to recognize plaintiff's claim thereto. A renewal of the tender of the money in court was also made by plaintiff. The answer of the defendant in this suit joins issue with the plaintiff in all these averments of fact, and states that on the 21st day of September, 1895, he purchased the real estate mentioned in plaintiff's petition at sheriff's sale for the price of $50, which he paid to the sheriff, and took a deed therefor. Defendant further avers that at the time he purchased said real estate and paid his money to the sheriff and took the sheriff's deed for the land he had no notice whatever of the alleged claim that plaintiff now sets up, and had no reason to believe or suspect that plaintiff had any claim or equity whatsoever, but verily believes that the sheriff, in offering said property for sale, had the legal and equitable right to sell and convey said real estate to the purchaser who might at said sheriff's sale buy said land; that said sale was in all respects conducted according to law, and was fair and open; that in all respects defendant relied upon the judgment of the circuit court of Jackson county, under which the sheriff's sale of the land was made; and that he acted in the utmost good faith, without any notice whatever of the plaintiff's alleged right, and without any intention on his part to defraud the plaintiff herein. At the trial the plaintiff in this action testified that he knew nothing of the proceedings against himself and others that resulted in the judgment under which his land was sold, and knew nothing of the sale of his land until just a short time before the institution of this suit, two years and more after the sale had been made; that he was never served with process in the case of John Keenan against William C. Mullins and others; that he never appeared therein and filed answer, and that he never authorized or employed any one else to appear for him or file an answer in his behalf in that case. The attorney who prepared and filed the answer in that case also testified that he had no authority to file an answer for this plaintiff in that suit, and that he did not undertake to file one for him, and did not so file an answer for plaintiff. The record in the case of Keenan against Mullins and others was also offered in evidence. On the back of the summons issued in that case the following return of service by the sheriff was made: "Executed this writ in Jackson county, Missouri, on the 22d day of December, 1891, by delivering a copy of this writ, together with a copy of the petition hereunto attached, to the within-named defendant R. H. Hamilton, he being the first defendant served. And further executed this writ on the same day by delivering a copy of this writ to the within-named defendant J. R. Hannon. And further executed this writ on the ____ day of December, 1891, by making diligent search for, but failed to find, the within-named defendant John R. Mullins. Wm. S. Sitlington, Sheriff. T. H. Gattnu, D. S." The answer filed in that case was also offered in evidence, and is in the following language: "In the Circuit Court, April Term, 1893. State of Missouri, Jackson County—ss.: John Keenan vs. William C. Mullins. Now comes the defendant, and for answer to the petition of plaintiff herein says: They allege that the cost bond referred to in plaintiff's petition was signed by him or by his attorney. They admit that they are taking steps to enforce the collection of the costs adjudged against plaintiff as surety on said bond. They deny each and every allegation in the petition not herein expressly admitted. Wherefore defendants pray that said injunction be dissolved, said suit dismissed, and that such other orders be made in the premises as the court may deem just and proper, and for costs. Fyke & Hamilton, Attorneys for Defendants." No other process was ever issued in the case, except the original summons, on the back of which appeared the return quoted above. Upon this showing of facts the court entered the following judgment: "Tuesday, April 10, 1894. John Keenan, Plaintiff, v. Wm. C. Mullins, John R. Mullins, R. H. Hamilton, and J. R. Hannon, Defendants. No. 16,743. Now come the parties hereto by their respective attorneys, and all and singular the matters herein being heard and considered, the court does find the issues herein in favor of the plaintiff, and that plaintiff is entitled to the relief prayed for. Thereupon, in open court, come defendants R. H. Hamilton and John R. Hannon, and enter their disclaimer herein. Thereupon it is considered, ordered, and adjudged that the temporary injunction herein be made perpetual. That the judgment heretofore rendered by the circuit court of Jackson county, Missouri, at Kansas City, in case number 8,221, wherein John Crane and...