La Presto v. La Presto

• Decision Date: 12 December 1955
• Docket Number: No. 2,No. 44768,44768,2
• Citation: 285 S.W.2d 568
• Parties: Margherita LA PRESTO, Respondent, v. Louis LA PRESTO, Appellant
• Court: Missouri Supreme Court

Page 568

285 S.W.2d 568

Margherita LA PRESTO, Respondent, v. Louis LA PRESTO, Appellant.

No. 44768.

Supreme Court of Missouri, Division No. 2.

Dec. 12, 1955.

Motion to Transfer to Court en Banc or for Rehearing Denied

Jan. 9, 1956.

Gerwitz & Seegers, G. L. Seegers, St. Louis, for appellant.

Robert W. Herr, St. Louis, for respondent.

STOCKARD, Commissioner.

This is an appeal from an order overruling a motion to quash a writ of execution.

In 1953 Margherita LaPresto brought suit against Louis LaPresto, her husband, for support and maintenance. The defendant was personally served but he filed no answer. On May 3, 1954, after defendant was in default approximately six months, trial was had on the merits, and on June 1, 1954 the court entered judgment and ordered defendant to pay to plaintiff 'as and for her support and maintenance, the sum of $15,000 in gross.' No attorney appeared for defendant at the trial, and he filed no motion for new trial and took no appeal. Execution was issued July 28, 1954 and certain real estate of the defendant was sold September 1, 1954, in partial satisfaction of the judgment.

Almost three months after the entry of the judgment, and the day before the execution sale, defendant filed a motion to quash the execution and to set aside the order of sale which the court subsequently overruled. This motion was a collateral attack on the judgment. Gary Realty Co. v. Swinney, 317 Mo. 687, 297 S.W. 43. The amount in dispute (the monetary value to either party of the relief granted or denied) is determined by the amount for which the execution was issued, in this case, $15,000. Flynn v. Janssen, Mo.Sup., 266 S.W.2d 666; Rostenberg v. Rostenberg, Mo.App., 199 S.W.2d 894.

There is no contention that the court did not have jurisdiction of the parties or the subject matter of the suit, that is, support and maintenance. Appellant's position is that an award of a lump sum or of an amount in gross in a suit for support and maintenance 'is improper and should not be permitted except in unusual cases.'

As a general rule a judgment rendered by a court having jurisdiction of the parties and the subject matter, unless reversed or annulled in some proper proceeding, is not open to contradiction or impeachment in respect to its validity or binding effect in any collateral proceeding. 49 C.J.S., Judgments, Sec. 401; Brand v. Brand, Mo.Sup., 243 S.W.2d 981; Jefferson City Bridge & Transit Co. v. Blaser, 318 Mo. 373, 300 S.W. 778; Aufderheide v. Aufderheide, Mo.App., 18 S.W.2d 119; Davis v. Morgan Foundry Co., 224 Mo.App. 162, 23 S.W.2d 231; Hocken v. Allstate Ins. Co., 235 Mo.App. 991, 147 S.W.2d 182. But a judgment which is void on the face of the record is entitled to no respect, and may be impeached at any time in any proceeding in which it is sought to be enforced or in which its validity is questioned by anyone with whose rights or interests it conflicts. 49 C.J.S., Judgments, Sec. 401; Faris v. City of Caruthersville, 349 Mo. 454, 162 S.W.2d 237; Davison v. Arne, 348 Mo. 790, 155 S.W.2d 155; Truesdale v. St. Louis Public Service Co., 341 Mo. 402, 107 S.W.2d 778, 112 A.L.R. 135. A judgment may be void because the record discloses on its face that the court exceeded its jurisdiction and rendered a particular judgment which it was wholly unauthorized to render under any circumstances, and in such event the rule against collateral attack does not apply. 49 C.J.S., Judgments, Sec. 428; Gray v. Clement, 296 Mo. 497, 246 S.W. 940; Burns v. Ames Realty Co., Mo.App., 31 S.W.2d 274; Ecton v. Tomlinson, 278 Mo. 282, 212 S.W. 865.

Appellant apparently concedes that the trial court did have jurisdiction to enter a judgment for an amount in gross for support and maintenance under certain circumstances, and this court has so held. In Pickel v. Pickel, 291 Mo. 180, 236 S.W. 287, a judgment for support and maintenance in gross in the sum of $10,000 was approved without discussion. However, in Wagoner v. Wagoner, 306 Mo. 241, 267 S.W. 654, the question of the jurisdiction of the trial court to enter a judgment for support and maintenance in gross was placed directly before this court upon application of the husband who sought to have his liability for support and maintenance fixed at a definite sum. In the Wagoner case it was held that the statutory authority for support and maintenance, now Section 452.130 RSMo 1949, V.A.M.S., does not prohibit the granting of support and maintenance in gross, and that the powers of the trial court in such actions are broad and discretionary. It was further held that not only did the trial court have jurisdiction to enter a judgment for support and maintenance in gross, but that under the circumstances presented there was no erroneous exercise of jurisdiction by the trial court.

In the present case the trial court had jurisdiction of the parties and of the subject matter of the cause of action, and it was not without jurisdiction under any circumstances to enter a judgment for support and maintenance in gross. Therefore, the judgment is not void on the face of th record, Flynn v. Janssen, Mo.Sup., supra, and may not be collaterally attacked.

In an effort to avoid this result, appellant urges that a judgment for support and maintenance in gross should not be permitted except in 'unusual cases' and that this is not such a case. He goes to considerable length to distinguish the facts of this case from those of Pickel v. Pickel and Wagoner v. Wagoner. However, a judgment of a court having jurisdiction cannot be impeached collaterally by showing that the evidence on which it was based would have been insufficient on appeal to sustain the judgment. Baumgartner v. Cloud, Mo.App., 218 S.W.2d 793; 49 C.J.S., Judgments, Sec. 432. A motion to quash an execution cannot be substituted for an appeal. Flynn v. Janssen, supra; Baumgartner v. Cloud, supra. In Kristanik v. Chevrolet Motor Co., 335 Mo. 60, 70 S.W.2d 890, 894, this court quoted from Rivard v. Missouri Pacific Railway Co., 257 Mo. 135, 165 S.W. 763, as follows: "The failure to distinguish between 'the erroneous exercise of jurisdiction' and 'the want of jurisdiction' is a fruitful source of confusion and errancy of decision. In the first case the errors of the trial court can only be corrected by appeal or writ of error. In the last case its judgments are...