Neidenberger v. Campbell

• Decision Date: 31 March 1848
• Citation: 11 Mo. 359
• Parties: NEIDENBERGER v. CAMPBELL, MCNIFF & BARNES.
• Court: Missouri Supreme Court

11 Mo. 359

NEIDENBERGER

v.CAMPBELL, MCNIFF & BARNES.

Supreme Court of Missouri.

March Term, 1848.

ERROR FROM ST. LOUIS COURT OF COMMON PLEAS.

The plaintiffs commenced their action in the St. Louis Court of Common Pleas in ejectment. The first count of the declaration alleged that Sarah J. Campbell, Peter McNiff and John Barnes were entitled to the possession of the premises sued for, while the second count alleged that Sarah Jane Campbell alone was entitled to the possession of one undivided half part of the said premises sued for in the first count. Upon this declaration, a judgment by default was taken, on the 9th day of November, 1847, and damages assessed at one cent, without the intervention of a jury, and judgment given for the recovery of the possession of the whole property. Upon the 20th November, the defendant appeared, and filed his motion in arrest of judgment and to set aside default and assessment of damages, because the damages were assessed without the intervention of a jury and without notice given to the defendant in any manner or way, the assessment having been made immediately upon the judgment by default. Upon the same day, Audille Lux and Edward Lux, landlords of the defendant, filed their motion to set aside default and to be admitted to be made co-defendants and to plead to the merits, upon reasons above stated, that the declaration was insufficient and illegal, that the judgment was illegal and void, and upon an affidavit of said Audille Lux alleging that she had a dower interest in said premises, her husband, John Lux, deceased, having held the same in fee, and that Edward Lux, a minor son of said John, was the only heir. That the defendant failed to notify either the said Audille or the said Edward of the pendency of the suit, as by law he was required to do; that they had a good defense upon the merits, as informed by counsel, and praying to be allowed to defend the suit, which they would have done, had they known of its pendency. The defendant also filed his motion to set aside the judgment, as irregular and void. The affidavit of Audille Lux stated that the plaintiff had taken judgment for the possession of the whole premises, while the defendant occupied only a small part of the same. To the affidavit of Audille Lux, there was a counter affidavit of one of the counsel for plaintiffs, stating that the judgment had been executed and the plaintiffs put in possession of the premises occupied by the defendant, by the sheriff, and that the defendant had attorned to the plaintiffs and agreed to pay rent. All the motions were overruled by the court, and exceptions taken, and the case brought to this court by writ of error. At the February term, 1848, after this writ of error was sued out, the plaintiffs, Campbell, McNiff & Barnes, filed a motion in the Court of Common Pleas to amend the record by striking out the second count in the declaration, which motion was sustained, and the transcript of the record of the proceedings in said motion as, by consent, made a part of the record in this court.

PRIMM & WHITTELSEY, for Plaintiff.

1. The judgment was irregular, erroneous and void, and should therefore have been set aside upon motion, and the irregularity is not waived by the issuing and executing the writ of habere facias possessionem. The irregularity can be taken advantage of at any time, and the judgment, if erroneous upon its face, will be set aside at any time within five years upon writ of error. 2. The judgment was manifestly erroneous and void, as the first count stated a joint right to the possession in all three of plaintiffs, and the second count stated a sole right in Sarah J. Campbell alone to the possession. Now, upon which of these counts could a court give judgment while both remain upon the record? Manifestly, upon neither. The whole declaration was bad, and radically so. And the judgment being defective, the court should have set the default aside and allowed the defendant to plead. Ser v. Bobst, 8 Mo. R. 506. 3. The court below erred in assessing damages without the intervention of a jury, and in giving judgment for the possession of the whole premises without having a jury to determine of what part of the premises sued for the defendant was in possession, and for these reasons the judgment and assessment of damages should have been set aside. 4. The court below erred in refusing to set aside the judgment by default and assessment of damages, and to admit Audille Lux and Edward Lux to defend as landlords, for the reason stated in the affidavit of Audille Lux, and because the judgment was irregular. 5. But there was a still better reason in this case, as the heir-at-law of John Lux, the person forme ly in possession and claiming title, and the landlord of the party dispossessed was an infant, who had no notice of the suit, and could not therefore defend. The want of notice to the landlord was therefore sufficient reason for stting aside the default and allowing the landlord to plead to and defend the action; and the court having refused to do this, committed error, and its judgment should be reversed. It has been the usual course in the courts of England and New York, with their strict practice, to set aside judgments by default, and allow the landlord to come in and defend when the tenant neglects so to do. Doe v. Roe, 4 Burr, 1996; Doe v. Roe, 2 C. & J. 682; Doe v. Roe, 11 Price, 507.

HAIGHT, for Defendant. The error complained of in this case is cured by the statute, Rev. Code, 1845, p. 831, § 7 of article VII, of Practice at Law. The defect has been amended in the Common Pleas, and is amendable in this court. The amendment may be made by amending the transcript. Graham's Pr. 641-2, and cases cited. Rev. Stat. 1845, p. 827,...