Mullins v. Rieger
| Decision Date | 14 October 1902 |
| Citation | 70 S.W. 4,169 Mo. 521 |
| Parties | JOHN R. MULLINS, Appellant, v. RIEGER |
| Court | Missouri Supreme Court |
Appeal from Jackson Circuit Court. -- Hon. E. P. Gates, Judge.
Reversed and remanded.
Johnson & Lucas for appellant.
(1) There was no service of process on appellant, no entry of appearance, and the judgment is void. Hence, respondent could obtain no title at sheriff's sale, and the appellant's peremptory instruction should have been given and respondent's refused. Black on Judgments (1 Ed.) secs. 170, 171, 215, 216, 218 and 220; Fithian v Monks, 43 Mo. 502; 2 Ency. Pleading and Practice, 640 691; Abbott v. Shepard, 44 Mo. 273; Janney v. Speddin, 38 Mo. 395; Smith v. McCutchen, 38 Mo. 415; Latimer v. Railroad, 43 Mo. 105; Morrison v. Herrington, 120 Mo. 665. (2) The appearance recited in the judgment is limited to persons actually made parties in the manner provided by law, and does not extend to one simply named as a party, but whom the record as a whole shows was in fact not a party. 2 Ency. Pleading and Practice, 600; Bell v. Brinkman, 123 Mo. 280; Gardner v. Hill, 29 Ill. 277. (3) A void judgment may be assailed in a collateral proceeding. McNair v. Biddle, 8 Mo. 257; Abbott v. Shepard, 44 Mo. 273; Higgins v. Peltzer, 49 Mo. 152; Railway v. Reynolds, 89 Mo. 146. (4) Want of jurisdiction may be shown by parol evidence. Eager v. Stover, 59 Mo. 87; Barlow v. Steele, 65 Mo. 611; Napton v. Leaton, 71 Mo. 358; Bradley v. Welsh, 100 Mo. 268. (5) The doctrine of absolute verity of a record does not apply when the want of jurisdiction is made a question. This may always be set up when a judgment is sought to be enforced or any benefit claimed under it; and this is not inconsistent with the principle which ordinarily forbids the impeachment or contradiction of a record. Fitzhugh v. Carter, 4 Tex. 391; Thouven v. Rodingus, 24 Tex. 468; Putnum v. Mann, 3 Wend. 202; Needham v. Thayer, 147 Mass. 536; Martin v. Gray, 17 Kan. 458; Doger v. Richardson, 25 Ga. 90; Fesjum v. Crawford, 70 N.Y. 253; Shelton v. Teffer, 6 How. 163. (6) Conceding that the judgment could not be attacked in a collateral proceeding, then the finding should have been for appellant on the first count in the petition, and the sale set aside and deed declared void. Momsin v. Herrington, 120 Mo. 655; McCullum v. Boughton, 132 Mo. 621; Regbum v. Mitchell, 106 Mo. 365.
Edward C. Wright for respondent.
(1) The judgment in this case was not void. Freeman on Judgments (4 Ed.), sec. 116; Childs v. Shannon, 16 Mo. 331; Landes v. Perkins, 12 Mo. 254; Landes v. Brant, 10 How. (U. S.) 371. (2) (a) This suit is a collateral attack upon the judgment under which the land was sold. Brooks v. Powell, 29 S.W. 809; Crawford v. McDonald, 83 Tex. 626; Young v. Watson, 155 Mass. 77, 28 N.E. 1135; Brigot's Heirs v. Brigot, 47 La. Ann. 1304, 17 So. 825; Shryock v. Beckman, 121 Pa. St. 248; Bonnifield v. Thorpe, 71 F. 924; Choteau v. Nichols, 20 Mo. 448; Kane v. McCown, 55 Mo. 181; Cochran v. Thomas, 131 Mo. 258; State v. Barry, 9 Mo.App. 42; Lingo v. Burford, 112 Mo. 149; Gott v. Powell, 41 Mo. 420; Van Camp v. Smith, 65 Mo. 536; Bradley v. Welsh, 100 Mo. 258; Lilliebridge v. Ross, 59 Mo. 217; Young v. Watson, 155 Mass. 77; Brown v. Nichols, 42 N.Y. 26. (b) The judgment being admittedly regular upon its face, and not being void, can not be attacked collaterally for matters not appearing upon the record. Bateman v. Miller, 118 Ind. 345; Freeman on Judgments (4 Ed.), sec. 134; Potter v. McClanahan, 52 Ala. 55; Ziegler v. Shows, 78 Pa. St. 357; Sachse v. Clingingsmith, 97 Mo. 406; Myers v. McRae, 114 Mo. 377. (3) Want of authority in an attorney is never ground for attacking a judgment collaterally, and even if on proper proceedings the judgment rendered upon an unauthorized appearance of an attorney should be set aside, the rights of a stranger to the record as in this case the defendant is, will not be affected. Osborne v. Bank, 9 Wheat. 738; Ferris v. Bank, 158 Ill. 237, 41 N.E. 1118; Abbott v. Dutton, 44 Vt. 546; White v. Crow, 17 F. 99; Cochran v. Thomas, 131 Mo. 258; Lingo v. Burford, 112 Mo. 149; Baker v. Stonebraker, 34 Mo. 172; Kane v. McCown, 55 Mo. 196; Warren v. Lusk, 16 Mo. 113; Heath v. Railroad, 83 Mo. 617; Decker v. Armstrong, 87 Mo. 316; Brecht v. Corby, 7 Mo.App. 300; R. S. 1899, secs. 4921, 649; England v. Garner, 90 N.C. 197; Williams v. Johnson (N. C.), 17 S.E. 496; Kenyon v. Schreck, 52 Ill. 328; Reeve v. Kennedy, 43 Cal. 643; Dickinson v. Trenton, 33 N.J.Eq. 63; Mark v. Mathews, 50 Ark. 338; Schmidt v. Niemeyer, 100 Mo. 207; Jones v. Hare, 60 Mo. 364; Macklin v. Allenberg, 100 Mo. 337; Bagley v. Sligo Co., 120 Mo. 248; Jones v. Talbot, 9 Mo. 124; Coleman v. McAnulty, 16 Mo. 173; Fithian v. Monks, 43 Mo. 502.
This is an action in two counts. The purposes of the first count are 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 is set out the names of all the parties plaintiff and defendant 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 him 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 fifty dollars (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 September 21, 1895, he purchased the real estate mentioned in plaintiff's petition at sheriff's sale for the price of fifty dollars, 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 v. 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 v. 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:
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