Potter v. Whitten

• Decision Date: 04 December 1911
• Parties: POTTER v. WHITTEN (CONQUEROR TRUST CO., Garnishee).
• Court: Missouri Court of Appeals

142 S.W. 453

161 Mo. App. 118

POTTER v. WHITTEN (CONQUEROR TRUST CO., Garnishee).

Springfield Court of Appeals. Missouri.

December 4, 1911.

Rehearing Denied January 8, 1912.

1. JUDGMENT (§ 470)—COLLATERAL ATTACK—JURISDICTION.

Judgment of a court having jurisdiction of the parties and of the subject-matter cannot be attacked collaterally.

2. JUDGMENT (§ 497)—COLLATERAL ATTACK —WANT OF JURISDICTION—EFFECT OF JUDGMENT RECORD.

The question of jurisdiction of a court must be tried by the whole record, and, where it appears therefrom that the court had no jurisdiction either over the person or the subject-matter, the judgment is void, and will be so held in a collateral proceeding.

3. COURTS (§ 35)—JURISDICTION—PRESUMPTION OR INTENDMENT.

The circuit court under the Code is a court of general jurisdiction according to the course of the common law, and nothing should be intended to be out of its jurisdiction, unless it is specially shown to be so.

4. JUDGMENT (§ 489)—COLLATERAL ATTACK— SUBJECT-MATTER WITHIN COURT'S JURISDICTION.

Where the subject-matter is of a kind not within the court's jurisdiction, its judgment is a nullity even in a collateral attack, but if it is of a kind within the court's jurisdiction, and it appears from the face of the record that the proper facts were before it, and that it proceeded within its lawful bounds, its judgment cannot be impeached except in a direct attack.

5. JUDGMENT (§ 503)—COLLATERAL ATTACK— DEFECT IN PLEADINGS OR PROOF.

A judgment cannot be collaterally attacked because the petition does not state a cause of action, or impeached for any defect in the pleadings or proof.

6. ACTION (§ 25)—JURISDICTION OF PERSONS AND SUBJECT-MATTER.

Where defendant personally appears and answers in an action on a note and for a foreclosure sale of collateral security, the circuit court, having jurisdiction over that class of actions, had jurisdiction of the subject-matter, whether the action be considered as an action at law on a promissory note or as a suit in equity for the foreclosure of the lien of a pledge.

7. JUDGES (§ 24) — JUDICIAL POWERS AND FUNCTIONS.

Under the Missouri Code of Procedure, providing but one form of action for the enforcement of private rights, called a civil action, the law vests the judge of the circuit court, not only with the attributes of a law judge, but also with those of a chancellor.

8. ACTION (§ 46)—JOINDER OF LEGAL AND EQUITABLE CAUSES OF ACTION.

Legal and equitable causes of action may be joined in the same petition if connected with the same transaction.

9. EQUITY (§ 39)—JURISDICTION—LEGAL RELIEF IN EQUITABLE ACTION.

Where the circuit court acquires jurisdiction for any purpose in an action on a note and for the foreclosure and sale of collateral security, it will retain jurisdiction for all purposes, and not put the parties to an action at law.

10. PLEDGES (§ 57) — ENFORCEMENT — SALE AND DEFICIENCY JUDGMENT.

In a suit by a pledgee to foreclose against the pledgor in which he establishes his case, he is entitled to an order for the sale of the property pledged and to a personal judgment for the deficiency.

11. GARNISHMENT (§ 91)—PROCESS—NECESSITY.

Rev. St. 1909, § 2414, which provides that, when a fieri facias shall be issued and placed in the hands of an officer, it shall be his duty, when directed by the plaintiff, to summon garnishees, gives like effect as in case of an original attachment, and summons may issue directly against a garnishee on execution without suing out process as in the case of an original suit.

12. GARNISHMENT (§ 97)—PROCESS—WAIVER OF DEFECTS.

A garnishee summoned in supplementary proceedings on execution, who appears generally and files answer to interrogatories, thereby waives any defect in the service of process of garnishment.

13. GARNISHMENT (§ 124)—DEFENSES.

Objections to a judgment rendered against a defendant which do not go to the jurisdiction of the court, and concern defendant alone, cannot be successfully raised by a garnishee in supplementary proceedings on defendant's execution.

Appeal from Circuit Court, Jasper County; David E. Blair, Judge.

Suit by John A. Potter against E. G. Whitten, in which after judgment and execution thereon the Conqueror Trust Company was made garnishee. Motion by the garnishee to quash execution sustained, and plaintiff appeals. Reversed and remanded.

H. S. Miller, for appellant. Fred. W. Kelsey, for respondent.

NIXON, P. J.

This is an appeal from an order of the circuit court of Jasper county quashing a general execution and writ of garnishment issued thereon in a case entitled "John A. Potter, Plaintiff, v. E. G. Whitten, Defendant." The petition in that case (which was introduced in evidence in this proceeding) recited the making of a promissory note on November 17, 1909, by Whitten to Potter for the sum of $1,658.13, payable four months after date, bearing interest at 8 per cent. per annum, and that as collateral security Whitten deposited at the time of making said note with the Joplin Trust Company 5,008 shares of the capital stock of the Consolidated Mining Company, said stock being of the par value of $25 per share, with the understanding that said stock would be delivered by said Joplin Trust Company to Potter upon failure of Whitten to pay said note when due. After the allegation of nonpayment of the note follows a prayer for judgment for the sum of $1,658.13 with interest and costs "and that said certificate of the capital stock of said Consolidated Mining Company, comprising 5,008 shares of the capital stock thereof, of the par value of $25 each, be sold to satisfy said judgment or part thereof, and for such other and further orders and judgments as to the court may seem meet and just." The promissory note in question (also introduced in evidence in this proceeding) contains this provision: "Collateral security of 5,008 shares of stock in Consolidated Mining Company of Ind. Ter. with full authority to Potter to sell same at private or public sale without notice of non-payment of this note subject to 60 days' extension." This note was attached to the petition in the original action as an exhibit. Defendant appeared in the original action, and filed an answer denying generally the allegations of the petition.

Thereafter, at the April term, 1910, the following judgment was entered:

"John A. Potter, Plaintiff, v. E. G. Whitten, Defendant.

"Now at this day this cause comes on for trial. The plaintiff appears by H. S. Miller, his attorney, and it appearing to the court that the defendant has heretofore appeared and filed an answer herein, and, now failing to further appear and plead, answer, or demur to the plaintiff's petition, the same is taken as confessed, and the plaintiff not requiring a jury all and singular the matters in issue are submitted to the court for trial. After hearing all the evidence, and being fully advised in the premises, the court finds the issues in favor of the plaintiff, that the defendant is justly indebted to the plaintiff in the sum of $1,724.45, and that plaintiff is entitled to recover that amount from the defendant as his debt and damages.

"The court further finds that, for the purpose of securing the payment of the note sued on herein, the defendant indorsed in blank and delivered and pledged to the plaintiff certificate No. 25 issued to defendant for 2,000 shares of the par value of $25 each of the capital stock of the Consolidated Mining Company, a corporation organized under the laws of the Indian Territory, said stock being dated October 19, 1908, and that, by reason of the premises, the plaintiff is entitled to and has a first lien upon said 2,000 shares of said capital stock securing the payment of said debt aforesaid.

"The court further finds that, for the purpose of securing the payment of the note sued on herein, the defendant indorsed in blank and delivered and pledged to the plaintiff certificate No. 30, issued to the defendant for 3,008 shares of the par value of $25 each of the capital stock of the Consolidated Mining Company, a corporation organized under the laws of the Indian Territory, said certificate being dated November 20, 1908, and that, by reason of the premises, the plaintiff is entitled to and has a first lien upon said 3,008 shares of said capital stock securing the payment of the debt aforesaid.

"It is therefore considered, ordered, and adjudged by the court that the plaintiff have and recover of and from defendant the sum of $1,724.45, the debt and damages so found due by the court as aforesaid, which judgment shall bear interest at the rate of 8 per cent. per annum and for costs.

"It is further ordered and adjudged by the court that said sum of $1,724.45 so found and adjudged to be due plaintiff upon said note be, and the same is hereby, declared and adjudged and decreed a first lien upon said certificate No. 25 as above described for 2,000 shares of the par value of $25 each of the capital stock of said Consolidated Mining Company, and also declared, adjudged, and decreed a first lien upon said certificate No. 30 as above described for 3,008 shares of the par value of $25 each of the capital stock of said Consolidated Mining Company.

"It is further ordered, adjudged, and decreed by the court that the lien of plaintiff upon said shares of stock as aforesaid be, and the same is hereby, ordered foreclosed, and that said stock be sold thereunder, and that any sums remaining after payment of the indebtedness shall be paid to the defendant herein, and, in case the amount due plaintiff be not paid, that plaintiff have and recover of and from the defendant any balance of indebtedness aforesaid remaining unpaid after sale of said stock and that execution issue accordingly."

On this judgment, on June 4, 1910, the clerk issued a general execution. The sheriff's return shows that it was executed on June 11, 1910, by levying upon the stock which had been pledged. The sale was set for June...