Phillips v. Evans
| Citation | 64 Mo. 17 |
| Parties | WILLIAM PHILLIPS, ALEXANDER NIMICK, J. M. BAILEY, DAVID BORLAND AND HUGH MCDONALD, Appellees, v. WALKER EVANS, HORACE B. FLETCHER AND BYRD EVANS, Appellants. |
| Decision Date | 31 October 1876 |
| Court | United States State Supreme Court of Missouri |
Appeal from Pettis County Circuit Court.
E. J. Smith, arguendo, cited: Bollinger vs. Chouteau, 20 Mo. 89; Coleman vs. McAnulty, 16 Mo. 173.
Huston & Bothwell, for Respondents, cited: Coleman vs. McAnulty, 16 Mo. 173; 19 Mo. 157; 1 Mo. 214; 39 Mo. 500; 46 Mo. 271; Wagn. Stat., 1872, 1034-5, §§ 3, 6, 7, 17; 20 Mo. 84; 43 Mo. 309; Duncan vs. Matney, 29 Mo. 369-76; Harrison vs. Cachelin, 36 Mo. 79-84.
Action on bill of exchange brought by plaintiffs under their firm name of Phillips, Nimick & Co., against defendants, sued as the firm of Evans, Fletcher & Co., and as the acceptors of the bill.
A writ of summons for defendants, Walker Evans, Horace B. Fletcher and Byrd Evans, was issued December 15, 1874, returnable to the January term, 1875, of said court. The original return on said writ was in the following words:
“Served the within summons by delivering a copy together with a copy of the annexed petition to H. B. Fletcher (he being first served), and also by leaving a copy with a white member of the family of Walker G. Evans, over the age of fifteen years, at his usual place of abode, all in Pettis county, Missouri, on the 19th day of December, 1874. Byrd Evans served by leaving a copy of the summons with a member of the family over the age of fifteen years, at his usual place of abode in Pettis county.
L. S. MURRAY.
Sheriff Pettis County, Mo.
By S. W. RITCHEY, Deputy.”
At the return term of the writ defendants failing to appear, were defaulted and judgment accordingly went for the sum claimed in the petition, together with ten per cent. damages in addition to ordinary interest, etc.
At the time of its rendition, on motion and affidavit, execution issued, returnable to the next May term, 1875. This execution seems to have been returned on February 17, 1875, the return showing but a trivial credit arising from the sale of iron, etc., being a balance after satisfaction of another execution. A second execution issued on the 26th of the last named month, returnable also to the next ensuing term.
At that time the defendants appeared and moved to set aside the judgment and quash the execution then in the hands of the officer, alleging as reasons that two of the plaintiffs in whose name the action was brought, and in whose favor the judgment was rendered and execution issued, were dead at the commencement of the action, to-wit: William Phillips and Alexander Nimicks; also, that there was no proper service of the summons on either Walker or Byrd Evans, so as to give the court jurisdiction over them and no appearance by either of them; also, because ten per cent. as damages on the amount of the bill of exchange sued on was included in the judgment, to which plaintiffs were not entitled; also, because there are two executions issued on the same judgment, directed to the same officer, and both returnable to the same term of the court, and the proceedings were then being had under the second one. On the hearing of said motion plaintiffs moved the court for leave for the sheriff to amend the return on the writ of summons, so as to show that the copy for Byrd Evans was left with a “white person,” and that same was done December 19, 1874; to which defendants objected because if done it would make a false return and because it was asked in aid of a return already false in this: It is not true that said Byrd Evans had, on the 19th of December, 1874, or ever had his usual place of abode, or any place of abode, in Pettis county, Missouri, all of which defendants offered to prove. But the court would not permit defendants to prove said facts but allowed said amendments to be made. The return was amended accordingly and plaintiffs entered an informal remittitur for $75, the amount wherein the judgment was to be alleged excessive in consequence of allowing ten per cent. damages. The motion to set aside and quash was overruled. Thereupon, defendants filed a motion to quash the levy and hold for naught the advertisement, and asking stay of the sale of the real estate so levied on, alleging as reasons that the property of defendants so levied on is a piece on Main street, in the city of Sedalia, 25 by 100 feet, entirely covered by a business house, and the sheriff has only levied on part of the same 20 by 100 feet and because said levy is uncertain, in that the property is levied on as the property of Evans and Fletcher, and the levy does not state which Evans, and the same is the common property of all the defendants, and because the same is true of the advertisement and because the advertisement does not follow the levy in this: The levy describes the beginning point as 21 feet 10 12 inches west of S. E. corner or block 28, in Sedalia, and in the advertisement describes the same as 25 feet 10 12 inches west from said S. E. corner of block 28. The levy was in the following words:
“By virtue and authority of this writ I hereby levy upon and seize the following described real estate, to-wit: Beginning at a point on the north line of Main street, twenty-one feet ten and one-half inches (25 feet 10 12 inches) in a westerly direction from southeast corner of block number twenty-eight (28) in the city of Sedalia, Missouri; thence in a northerly direction and at right angles to said Main street one hundred (100) feet; thence westerly and parallel, with said Main street twenty (20) feet; thence southerly and parallel with first line one hundred (100) feet; thence easterly on north line of Main street twenty-five (25) feet to place of beginning, being part of lots four (4) and five (5) in block 28 in the city of Sedalia, Missouri, as the property of Evans, Fletcher & Co., all in Pettis county, this 27th of February, 1875.
L. S. MURRAY, Sheriff.
By S. W. RITCHEY, Deputy.”
The advertisement gave notice that said property was levied on and would be sold by virtue of the execution in this case, and one in favor of Wm. Clark & Co. against the same defendants, Evans, Fletcher & Evans, but declared that the same was levied on as the property of “Evans & Fletcher,” and described the same as follows: “Beginning at a point on the north line of Main street twenty-five feet ten and one-half inches in a westerly direction from the southeast corner of block twenty-eight in the city of Sedalia, Missouri; thence in a northerly direction and at right angles to said Main street one hundred feet; thence westerly and parallel with said Main street twenty-five feet; thence southerly and parallel with first line one hundred feet; thence easterly on north line of Main street, twenty-five feet to place of beginning, being part of lots four and five in block twenty-eight, in Sedalia, Pettis county, Missouri.” On the hearing of the motion, defendants read in evidence the execution, levy and notice of sale. It was admitted that the property of defendants so levied on was a piece of ground on Main street in the city of Sedalia, 25 by 100 feet, and entirely covered with a brick business house worth six thousand dollars, and that the same was owned in common by all the defendants. The court overruled the motion. And defendants having filed affidavit and bond, bring the case to this court by appeal.
Although a judgment may for irregularity be set aside at any time within three years (Wagn. Stat., 1062, § 26), yet such irregularity must be one patent of record and cannot be shown by matter dehors the record. This renders evidence showing that two of the plaintiffs were dead at the commencement of the action entirely unimportant and inadmissible, and no error could have been committed had the absolute rejection of such evidence, instead of the reception of that of a contrary character, also occurred. After the term has passed, the court cannot be compelled to review the evidence upon which the judgment was given; and as the bill of exchange constituted no part of the petition, and as the amounts of...
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Smoot v. Judd
...Mo., loc. cit. 23, and McClanahan v. West, 100 Mo. 309, 13 S. W. 674 — and Sherwood, J., spoke for the court in both of those cases. Phillips v. Evans, supra, was an action at law upon a bill of exchange. The return of the sheriff was that the summons was personally served upon one of the d......
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Cross v. Gould
...other authorities dealing with such motions to the same effect, see Brewer v. Dinwiddie, 25 Mo. 351; Doan v. Holly, 27 Mo. 256; Phillips v. Evans, 64 Mo. 17; Harkness v. Austin, 36 Mo. 47; Burgess v. Hitt, 21 Mo. App. 313; State ex rel. Ozark County v. Tate, 109 Mo. 265, 18 S. W. 1088, 32 A......
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... ... Hallowell v ... Page, 24 Mo. 590; Smoot v. Judd, 83 S.W. 484; ... Decker v. Armstrong, 87 Mo. 316; State v ... O'Neil, 4 Mo.App. 221; Phillips v. Evans, ... 64 Mo. 23; State ex rel. v. Finn, 100 Mo. 429; ... Heath v. Railway 83 Mo. 617; McDonald v ... Leewright, 31 Mo. 29; Delinger v ... ...
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Smoot v. Judd
...Mo. l. c. 17 at 23, and McClanahan v. West, 100 Mo. 309, 13 S.W. 674, and Sherwood, J., spoke for the court in both of those cases. Phillips v. Evans, supra, was an action at law upon a bill exchange. The return of the sheriff was that the summons was personally served upon one of the defen......