Patterson v. Yancey

• Decision Date: 20 January 1903
• Parties: JOHN F. PATTERSON et al., Appellants, v. C. D. YANCEY et al., Respondents
• Court: Missouri Court of Appeals

71 S.W. 845

97 Mo.App. 681

JOHN F. PATTERSON et al., Appellants, v. C. D. YANCEY et al., Respondents

Court of Appeals of Missouri, St. Louis

January 20, 1903

Appeal from Carter Circuit Court.--Hon. J. L. Fort, Judge.

AFFIRMED (except as to defendant Dalton).

Judgment affirmed.

Thomas Mabrey, A. J. McCollum and Jno. M. Atkinson, with whom is Everett W. Pattison for appellants.

(1) Upon the pleadings in the action on the bond the defendants in that action were entitled to judgment in their favor, and the Carter Circuit Court should have rendered such a judgment. Accordingly, a court of equity will do now what that court should have done in the original action. Spurger v. Hardy, 4 Mo.App. 573; State ex rel v. Spencer, 79 Mo. 314; Shelby County v. Bragg, 135 Mo. 291; Farris v. Coleman, 103 Mo. 352. (2) As to those plaintiffs here (defendants in the original action) who were commanded to appear at the December term, the judgment is a nullity. Holliday v. Cooper, 3 Mo 286; Bobb v. Graham, 4 Mo. 222; Ellis v Jones, 51 Mo. 180. (3) Under the circumstances of this case, the judgment in the original cause should be held to be an entirety, and should be set aside not only as to the defendants who were improperly served but also as to all the defendants. (4) The fact that defendants were misled by the promise of the clerk as to sending of the transcript, is of itself a sufficient ground for setting aside the judgment. Smoot v. Judd, 161 Mo. 673; Payne v. O'Shea, 133 Mo. 129; Martin v. St. Charles Tobacco Co., 53 Mo.App. 655. (5) The return of the coroner is not conclusive, and does not bind the defendants who were improperly served. Smoot v. Judd, 161 Mo. 673; Atwood v. Atwood, 55 Mo.App. 370; Milner v. Shipley, 94 Mo. 106.

Dinning, Hamel & Dinning for respondents.

(1) There is no error in this record prejudicial to the appellants, if the so-called bill of exceptions filed in this cause were a legal one, but there was no legal bill of exceptions filed herein. On the 13th of March, 1901, the Legislature redistricted the State into judicial circuits, and fixed the terms of court therein, and in this redistricting Carter county, the county where this case was tried, was placed in the Twentieth judicial circuit. Prior to that time, it had belonged to the Twenty-second judicial circuit. The Forty-first General Assembly adjourned on March 18, 1901, and there being no emergency clause to the law redistricting the State, the same took effect June 16, 1901. After that time, the Honorable J. L. Fort was not judge of the circuit court of Carter county, and had no right to sign the bill of exceptions. Section 731, R. S. 1899, reads: "In any case where the judge who heard the cause shall go out of office before signing the bill of exceptions, such bill, if agreed to be true by the parties to the action, or their attorneys, or shown to the judge to be correct, shall be signed by the succeeding or acting judge of the court where the case was heard." (2) The allegation in the petition for injunction, that "the defendants in the case of the State ex rel. v. Patterson et al., had a valid defense" without setting out that defense, was not sufficient. That defense, if it existed, should have been specifically set out in the bill, that it might be seen that the defense was meritorious. Pry v. Railroad, 73 Mo. 126. (3) The general appearance of the defendants to the action in State ex rel. v. Patterson, in the filing of a motion for an additional bond for costs; the filing of answer for all of the defendants, setting up a general and special defense to the action, and the appearance to the application for a change of venue, and the selection of the court to which the case should be sent, was absolutely binding on the defendants. Pry v. Railroad, 73 Mo. 127. In this case the defendants appear and disappear and reappear, and then complain, in a court of equity, that they never did appear, only in part. (4) The objection that the amount of the money for which judgment was given, must appear in the minutes of the judge and the clerk's minutes, is not well taken, as is well settled by our own courts. Platte County v. Marshall, 10 Mo. 346; Fontaine et al. v. Hudson, 93 Mo. 62. (5) A summons regularly returned as served by the delivery of a true copy of the petition as furnished by the clerk, and a copy of summons, can not be contradicted by the oral testimony of the party served, nor otherwise, or at all. Phillips v. Evans, 64 Mo. 17; Warren and Dalton v. Lusk, 16 Mo. 102; Heath v. Railroad, 83 Mo. 617; Decker v. Armstrong, 87 Mo. 316; State ex rel. v. Finn, 100 Mo. 429.

GOODE, J. Bland, P. J., and Reyburn, J, concur.

OPINION

GOODE, J.

The object of this suit is to enjoin the collection of a judgment which was recovered by C. D. Yancey, one of the defendants herein, against John F. Patterson, G. M. Patterson, J. A. Christian, G. A. Bingham, E. R. Hicks, Joseph Dalton, Herman Borth, R. C. Barrett, Thomas Clark, Neely Moore, Nathan Price, J. A. Ponder and W. H. Merrill, the plaintiffs herein, on September 20, 1900.

John F. Patterson was sheriff of Ripley county, Missouri, qualifying as such in January, 1893, and during his term C. D. Yancey recovered a judgment against one Lane in which an execution was issued and delivered to said Patterson. The other plaintiffs in the present action were said Patterson's sureties on his official bond as sheriff, and because of his alleged misconduct in the matter of the special execution against Lane, Yancey instituted an action against him and his said sureties on the bond.

That action was begun in the circuit court of Ripley county on the twenty-eighth day of December, 1899, and was returnable to the April term of that court, which had two terms a year, to-wit, in April and November. A summons to the defendants was issued and placed in the hands of the coroner for service, one of the defendants (said John F. Patterson) being the sheriff of the county, and the coroner made a return showing personal service on all the defendants of a writ of summons, which commanded them to be and appear at the next term of the Ripley Circuit Court to be begun and held on the first Monday in April, 1900. This service was made on January 30, 1900. Three of the defendants in that action (plaintiffs in this one) to-wit, Neely Moore, J. A. Ponder and Joseph Dalton, instead of being summoned to appear at the April term, 1900, of the Ripley Circuit Court, were, by a mistake of the clerk of that court in filling out the blank writs of summons, commanded to appear at the December term thereof, 1900, as was shown by the introduction in evidence of the copies of the summons left with them. This fact is material as to defendants Ponder and Dalton, but immaterial as to Neely Moore, because he was shown to have employed counsel who represented him at the April term, 1900, of the Ripley Circuit Court; whereas there was testimony tending to show that Ponder and Dalton did not employ counsel and were not represented at that term.

An answer to plaintiff's petition in the action was filed in behalf of all the defendants and signed by three attorneys who purported on the face of the answer to represent and act for all the defendants. These attorneys were Thomas Mabrey, G. W. Crowder and A. J. McCullom. The answer admitted the election of John F. Patterson as sheriff, and that he qualified in that capacity, giving a bond with the other defendants as sureties thereon, but denied all other allegations of the petition and set up as a further defense the three-year limitation statute. Said answer was filed April 4, 1900, and was met by a replication setting up facts in avoidance of the plea of the statute of limitations.

Yancey made application for a change of venue from Ripley county and by direction of the defendants the venue was changed to the circuit court of Carter county. J. P. Campbell, circuit clerk of Ripley county, made out the transcript but, according to the testimony of Neely Moore, told the latter it would not be forwarded until the costs were collected from or paid by Yancey. Thomas Mabrey, one of the attorneys for the defendants, also testified that Campbell made the same statement to him. The transcript was sent to Carter county, however, in time for the case to be docketed for trial at the September term of the circuit court, at which term Yancey appeared and introduced testimony in support of his petition, but the defendants did not appear nor make any defense; so judgment went against them for about six hundred dollars, on which an execution was afterwards issued. That judgment and that execution are sought to be enjoined in the present suit on the grounds that Ponder and Dalton were never properly summoned in the action and did not appear therein nor authorize any attorney to appear for them, and that all the other defendants or their attorneys were deceived by the aforesaid statement of the clerk of the circuit court of Ripley county in regard to sending the transcript to the circuit court of Carter county, and, relying on those statements, made no defense in the latter court nor had any knowledge of the cause being there until after judgment had been rendered against them and execution issued thereon.

The present proceeding was tried before the Hon. J. L. Fort judge of the circuit court of Carter county, and resulted in a decree dismissing the plaintiff's bill, from which decree an appeal was taken to this court. Prior to the adjournment of the term of said circuit court at which the decree was rendered, to-wit, the April term, 1901, Judge Fort overruled the motions of the plaintiffs for a new trial and in arrest and extended the time for filing the bill of exceptions to a day during the ensuing vacation of the court. ...