Newton v. Newton

• Decision Date: 29 October 1888
• Citation: 32 Mo.App. 162
• Parties: ANN NEWTON, Respondent, v. SAMUEL NEWTON, Appellant.
• Court: Kansas Court of Appeals

32 Mo.App. 162

ANN NEWTON, Respondent, v. SAMUEL NEWTON, Appellant.

Court of Appeals of Missouri, Kansas City.

October 29, 1888

Appeal from Miller Circuit Court. --HON. E. L. EDWARDS, Judge.

REVERSED AND REMANDED.

The case is stated in the opinion.

Moore & Williams, for the appellant.

(1) The execution in this case was issued without authority of law. The order upon which it is based is not binding on defendant. The court could not make the order for alimony pendente lite in any case; certainly not in the absence of jurisdiction. The defendant was entitled to his day in court on a legal summons. R. S. 1879, secs. 3283, 3288, 3487, 3488 Cloud v. City, 86 Mo. 358. The execution extends over five months after the case was taken from Miller circuit court by change of venue; this could not be done had the original order been valid. R. S. 1879, sec. 3741; State v. Daniels, 66 Mo. 192; Freeman on Executions, sec. 20. (2) The order for alimony pendente lite, if properly made, would be suspended in case the suit is taken by a change of venue to another court, or, at least, the latter court would have control of the matter as soon as jurisdiction was acquired. In this case, the case was taken from the jurisdiction of the Miller circuit court in September, 1887, and the execution is for the collection of alimony upon the alleged order up to February, 1888. If the clerk could issue such an execution, he might continue to do so, at intervals, in the future, interminably, without reference to the termination of the suit in the Callaway circuit court. Freeman on Executions, sec. 20; R. S. 1879 sec. 3541; State v. Daniels, 66 Mo. 192. (3) The execution having been wrongfully and improvidently issued by the clerk, it was the duty of the lower court to quash it on motion. The court conceded the invalidity of the execution but refused to entertain the motion to quash on the ground that " the Miller circuit court had no jurisdiction" on account of the change of venue taken in the original suit. In this the court erred. Courts will vacate void process, and also process based on void judgments, and thereby relieve defendant from annoyance, such as a cloud on his title or a suit against the officer, and the better course is always to have it quashed. Freeman on Executions, sec. 73; Holzhour v. Meer, 59 Mo. 434; Henring v. Williams, 65 Mo. 446. Application to quash a writ must always be presented to the court whence it issued, and the judge of the Miller circuit court erred in refusing to entertain the motion. Mellier v. Bartlett, 89 Mo. 134; Pratt v. Canfield, 67 Mo. 48; Keyte v. Plemmons, 28 Mo. 104; Nelson v. Brown, 23 Mo. 13; McDonald v. Freman, 17 Mo. 603; Pettus, Adm'r, v. Elgin, 11 Mo. 411. The court having refused to quash the execution, the lower court properly granted the appeal upon filing the affidavit and bond, which operated as a stay of proceedings. Ex parte James & Ray, 59 Mo. 280; Parker v. Railroad, 44 Mo. 415. Clearly, if the above propositions are correct, the case should be remanded, with directions to the lower court to quash the execution.

Edmund Burke, for the respondent.

(1) The circuit court of Miller county was authorized, on the petition of the plaintiff, to order and adjudge that she be supported and maintained by the defendant out of his property, and for such time as the nature of the case and the circumstances of the plaintiff required, and to enforce such judgment by execution. R. S. 1879, sec. 3283. The circuit court of Miller county having, on the first day of April, 1887, by its entry of record, ordered that the sum of one dollar per day be paid by the defendant to the plaintiff, the latter became entitled to an execution, in conformity with said judgment, and for its enforcement. R. S. 1879, secs. 2335, 2739; Bush v. White, 85 Mo. 339. (2) The record shows in this case that the defendant was duly served with process, by virtue of which the circuit court of Miller county obtained jurisdiction over him, and under these circumstances the validity of any judgment rendered against him by said court cannot be assailed in a collateral proceeding. Brackett v. Brackett, 53 Mo. 265. In the case of Brackett v. Brackett, supra, the court say: " If the court possessed jurisdiction, it had the undoubted power to enter final judgment, and any irregularity it committed would enable the party to reverse the judgment on error or appeal, or vacate the same by a direct proceeding, but it would surely not be competent to attack it collaterally." A similar principle is enunciated in the following cases: Gray v. Bowles, 74 Mo. 419; Rorer on Judg. Sales, sec. 59; Freeman on Judg., sec. 118; Chase v. Christianson, 41 Cal. 253; Ellis v. Jones, 51 Mo. 180; Jeffries v. Wright, 51 Mo. 215; Hardin v. Lee, 51 Mo. 241; Canon v. Sheldon, 51 Mo. 436; Freeman v. Thompson, 53 Mo. 183; Paine v. Moreland, 15 Ohio 435; Raley v. Guinn, 76 Mo. 263, 430. (3) The mere fact that, after the rendition of the judgment for temporary maintenance in favor of the plaintiff and against the defendant by the circuit court of Miller county, a change of venue was taken in the cause to the circuit court of Callaway county, did not invest the latter court with any power to control said judgment; neither did it divest the former court of its power to control or enforce it.

HALL J.

The plaintiff and defendant are husband and wife. On the twenty-first day of March, 1887, the plaintiff filed a petition for separate maintenance in the circuit court of Miller county on the ground of abandonment by her husband. Summons was issued on March 22, made returnable to the September term, 1887, of the circuit court, and was served on the defendant on March 28, 1887. The spring term of the circuit court began on the last-named day and on that day the plaintiff filed a motion asking for temporary separate maintenance during the pendency of the proceeding theretofore instituted against the...