Poindexter v. Marshall

• Decision Date: 26 March 1946
• Docket Number: No. 6607.,6607.
• Citation: 193 S.W.2d 622
• Parties: POINDEXTER v. MARSHALL et al.
• Court: Missouri Court of Appeals

193 S.W.2d 622

POINDEXTER v. MARSHALL et al.

No. 6607.

Springfield Court of Appeals. Missouri.

March 26, 1946.

Appeal from Circuit Court, Dade County; O. O. Brown, Judge.

Suit by John T. Poindexter against W. H. Marshall, Elnora Marshall and another, on a note, wherein a default judgment in favor of plaintiff was entered. From an order overruling motion of named defendant to vacate judgment because of irregularities appearing upon the face of the record, the named defendants appeal.

Reversed with directions.

Flay E. Randle, of Springfield, for appellants.

W. S. Pelts, of Greenfield, for respondent.

VANDEVENTER, Judge.

This is an appeal from an order of the circuit court of Dade County overruling a motion to vacate a judgment because of irregularities appearing upon the face of the record.

On the 19th day of February, 1945, John T. Poindexter filed a suit against W. H. Marshall and Elnora Marshall as makers and Judith Engleman Poindexter as endorser of a promissory note. A copy of the note was filed with the petition. Summons was issued on the day the suit was filed and on that day served on Mrs. Poindexter and summonses were served on the Marshalls (appellants here) on the 21st day of February, 1945. In the body of these summonses was the statement that a pleading to the petition must be filed and a copy served upon the attorney for John T. Poindexter within 30 days after service upon them, excluding the day of service, and, "If you fail to do so, judgment by default will be taken against you for the relief demanded in the petition." On the 12th day of March, 1945, the cause was submitted to the court without a jury and judgment rendered against appellants for principal, interest and attorney's fees in the sum of $514.80, although the time for filing answers or other pleadings had not expired and such pleadings had not, in fact, been filed. On the 15th day of March, 1945, an execution was issued on this judgment and a levy was made upon certain real estate owned by the appellants. On the 18th day of June defendants filed a motion to quash the execution upon the ground that the judgment, upon which it was based, was prematurely rendered and this motion was overruled by the court.

Afterwards, on the same day, the real estate was sold by virtue of the execution and bought in by Poindexter, the owner of the note, and respondent here. On the 28th day of June, 1945, the appellants here filed a motion to set aside the judgment for irregularities in that it had been rendered by the court prematurely and before the time for filing pleadings had expired. This motion was also overruled by the court and the Marshalls appealed.

Appellants rely upon the provisions of Section 1267, Revised Statutes Missouri Annotated, as the basis for their motion. That section is as follows:

"Judgments in any court of record shall not be set aside for irregularity, on motion, unless such motion be made within three years after the term at which such judgment was rendered."

Appellants assert, there being no dispute about the facts, and the irregularities appearing upon the face of the record, the trial court committed error in overruling the motion. Respondent, Poindexter, contends that Section 1267, supra, has either been repealed or modified by the Civil Code of Missouri 1943, Mo.R.S.A. § 847.1 et seq., and the rules of the Supreme Court supplementing and harmonizing the civil code for practice and procedure in all courts, and that the three year limitation no longer applies.

It has been frequently held that an appeal may be taken from the overruling of such a motion. Harrison v. Slaton, Mo.Sup., 49 S.W.2d 31; Audsley v. Hale, 303 Mo. 451, 261 S.W. 117; Precision Metal Workers v. Northside Mercantile Co., 218 Mo.App. 544, 280 S.W. 82; Carpenter v. Alton R. Co., Mo.App., 148 S.W.2d 68; Ford v. Ford, Mo.Sup., 24 S.W.2d 990.

It has also been held that the premature rendition of a judgment, that is, a judgment rendered before the time for answering has expired, is such an irregularity as to require the judgment to be set aside upon a motion filed under the provisions of Section 1267, supra. Branstetter v. Rives, 34 Mo. 318; Reed v. Nicholson, 93 Mo. App. 29; Cross v. Gould, 131 Mo.App. 585, 110 S.W. 672, loc.cit. 676; Jeude v. Sims, 258 Mo. 26, 166 S.W. 1048, loc.cit. 1057; Smith v. Best 42 Mo. 185; Lawther v. Agee, 34 Mo. 372.

Section 1267, supra, was first enacted in 1835 and was in its present wording except the motion must have been made within "five" years after the "time" such judgment was rendered. R.S.Mo.1835, p. 470. By 1845, this section had been amended and the word "time" was changed to "term." R.S.Mo.1845, p. 831. By 1865 the "five" year limitation had been changed to "three" and it has remained in that wording until the present time. It is a special statute covering this kind of a proceeding and has become well established legal procedure in this state, as the many adjudicated cases will certify. It is the only statute authorizing the procedure in the case we have before us. During all the time since its enactment, we have also had many general statutes relating to the service of process and specifying the time within which answers, motions, demurrers and other pleadings must be filed in civil cases, and so far as we can ascertain, its inconsistency with those statutes has never been questioned. This section is not specifically repealed by the Civil Code of Missouri 1943 and we do not think it is inconsistent with that code and thereby repealed by implication. Section 2 of the Civil Code provides that it shall govern the procedure of all suits and proceedings of a civil nature in the courts of this state, "unless otherwise provided by law."

Section 24 of the Civil Code provides that upon the filing of a petition, the clerk shall forthwith issue a summons, and Section 25 states that that summons shall recite "the time within which and the place where ...