Peake v. Redd

• Decision Date: 31 March 1851
• Parties: JAMES L. PEAKE v. JOHN T. REDD.
• Court: Missouri Supreme Court

14 Mo. 79

JAMES L. PEAKE

v.JOHN T. REDD.

Supreme Court of Missouri.

March Term, 1851.

ERROR TO MARION CIRCUIT COURT.

PRATT, BUCKNER, GLOVER & CAMPBELL, for Plaintiff.

1. The action of the County Court, setting aside and annulling the supposed allotment of dower in the slaves of the deceased, under the order of November 13, 1839, to Penelope Francis, was legal and proper. 1st. Because the said order of 13th of November, 1839, appointing commissioners to assign dower in the slaves, was made without application therefor by any party in interest to the court; and without ten days' notice to the administrators or heirs of said Th. Francis, deceased; or to the guardians of such heirs; and consequently was null and void without any action of the court. See an act respecting an act entitled “An act respecting Partition and Dower in Slaves,” Sess. acts, 1837, p. 61. We concede that a judgment not void upon its face, cannot be questioned incidentally or collaterally, as was ruled in 4 Bibb's R. 336, but here the proceeding was direct, to vacate the supposed judgment or order on the ground that it was void on its face for want of notice, as required by the statute of the common law. See 2 Pirtle's Dig. 17, 12, 15, “a judgment rendered in an original action without service of process is a nullity.” In Soulden & Co. v. Cook, 4 Wend. R. 218, it was on motion to set aside judgment on scire faias, held, that had the defendant not been arrested, the motion would have been entertained. “Judgment was set aside after inquiry executed, it appearing that one of the defendants had no notice of the writ or declaration.” 2 Cow. & Hill, p. 845 (a), note 2, citing 1 Barnes. “It is a rule of law,” says Starkie (vol. 2, Law of Ev.), “founded on the first principle of natural justice, that no judgment shall be pronounced against any one who has not had notice of the proceedings, and an opportunity to defend himself.” See 7 Term R. 363; 4 Burr. R. 2244. 2nd. The report of the commissioners was void, because they were not legally appointed; the appointment being null and void, the report must be so too. 3rd. But supposing the order appointing commissioners was void, and the report of the commissioners was valid, said report was never made the judgment of the court, and was invalid as an allotment of dower in the slaves. It was neither “confirmed” nor “rejected.” See Sess. acts, 1837, p. 61.4th. The County Court had no power to allot to the widow one-third of the slaves of the deceased, the statute allowing her only a child's part, which in this case is one-third of the estate. See Sess. acts, 1837, p. 61. The court only has power to award the “just rights” of the parties.

II. The action of the County Court in setting aside and annulling the order of February 25, 1843, distributing slaves and personal estate, was legal and proper. 1st. Because no notice of the intended application to procure said order was ever given to the administrators or either of them--as required by the statute. See Sess. acts, 1837, p. 61. The administrator holds the legal title of the entire personal estate for the payment of debts; and any proceeding divesting him of this title without notice and in his absence is equally void by the statute, and the highest considerations of public policy. 2nd. Because, if there was any notice given to any of the parties in interest, it was a partial notice only, not extending to nine of the heirs, Nancy Jane Francis, an infant, Mrs. Graves, Mrs. Peak, Mrs. Ousley or Mrs. Bryant, who were the heirs, and entitled to notice by the statute; nor to Wade H Pollard or wife, nor to Sarah, William or James, the three last infants, nor to the guardians of such infants. “Ten days' notice shall be given of every application for such partition and assignment, to the executor or administrator, and to all the heirs and legatees interested therein, or their guardians, or agents, and if any be non-residents,” &c. See Sess. acts, 1837, p. 61. We contend that a notice, in this case, to an infant is no notice, unless served on the guardian of such infant. 3rd. But there was no legal notice to any of the persons in interest; the affidavit of Hunt is a nullity, certifying that he orally, as we must conclude, notified, &c. See Rev. Code, 1835, Practice at Law, p. 451, § 18. 4th. The County Court had no power to allot to the widow one-third, when her just right was only one-third of the estate. The defendants contend that the court had no power over after the term at which it was granted; and this is granted by us, if the order was valid when made; but if void ab initio, as in this case, it may be set aside on motion or may be treated as a nullity, all persons attempting to execute it, being trespassers, and liable as such.

III. The defendants will insist that the County Court had no jurisdiction of the motion to set aside said orders after the term at which they were made. That their action on said motion was a usurpation of power. Should this court concur with them in this view, we shall insist that no appeal lay to the Circuit Court, and the Circuit Court erred in taking cognizance of the appeal, and in reversing the action of the County Court. The order of the County Court setting aside another order, is not one of the cases in which an appeal lies. Rev. Code, 1835, p. 63, Administration, art. 8, § 1. If the court exceeded its jurisdiction, the remedy was by writ of prohibition, not appeal. 2 Chitty's Gen. Pr. 355-6; Tuck. Com. 203; 2 Cow. & Hill, 1098.

IV. The Circuit Court never had jurisdiction of the case, because there never was in fact an appeal lawfully granted; the statute provides that the appeal shall be perfected at the same term in which the decision complained of was made: here the appeal is not granted at all, save on a condition which is to be supplied in vacation. See Rev. Code, 1835, p. 63, art. 8, §§ 2, 3, 4.

V. That no appeal would lie from the decision of the County Court in this case is most manifest from 8th section of the 8th article, Law of Administration, p. 63, Rev. Code, 1835, which declares that “on every such appeal, the Circuit Court shall determine the points or decisions excepted to, and if it be of opinion that the County Court erred” * * * “a new trial shall be granted;” now if the Circuit Court was of opinion that error had been committed in this case, how could a new trial be granted?

VI. There is no case, save by the bill of exceptions, made in the County Court.

REDD, for Defendants. The defendants contend that the Circuit Court did not err in overruling and dismissing the plaintiff's motion. The plaintiffs do not allege in their motion any want of jurisdiction, either as to the subject matter or parties, neither do they allege that the allotments of dower made in 1839, was not affirmed by the court. The motion makes no objection to the distribution, except the errors of law in giving the widow one-third, instead of a child's part, and acts upon that alone as the ground of relief. On this point the defendants hold the rule to be that no court of record can after the term is past, annul its own judgment and unsettle the rights of the parties under it because of an error of law. In laying down the English doctrine, Lord Coke observes that “during the term wherein a judicial act is done, the record remaineth in the breast of the judges, therefore the roll is alterable during that term, but when the term is past, then the record admitteth of no alteration, averment or proof to the contrary.” Coke Litt. 260, a; Blackamore's case, 4 Coke R. part 8, pp. 156-7; Croke Eliz. 497, Harcourt v. Bishop; 1 Wilson's R. 61; 2 Strange, 1110; 2 W. Blacks. R. 1300; 1 Ld. Raym. 182; 3 Barn. & Cress. 235. American decisions affirm the same doctrine. Court observes in Loring v. Mansfield, 17 Mass. R. 312, that the merits of a judgment can never be overhauled in a new proceeding; otherwise there would be no end to legislation. See, also, 1 Mo. R. 202; 6 Mo. R.; 7 Mo. R. 320; 12 Mass. R. 268-9; 1 Peck's R. 441; 3 Cond. R. S. C. of U. S. 339; 3 Johns. 369; 12 Johns. 312.

This being a new proceeding, instituted nearly five years after the allotment of dower, and nearly two years after the judgment of...