Reed v. Nicholson

• Decision Date: 11 December 1900
• Citation: 158 Mo. 624,59 S.W. 977
• Parties: REED et al. v. NICHOLSON et al.
• Court: Missouri Supreme Court

59 S.W. 977

158 Mo. 624

REED et al. v. NICHOLSON et al.

Supreme Court of Missouri, Division No. 1.

December 11, 1900.

JUDGMENTS — VALIDITY — EVIDENCE — COLLATERAL ATTACK.

1. Where a final judgment is rendered under Rev. St. 1889, § 2214, which provides that, where an interlocutory judgment by default is rendered in an action on a written instrument, and the demand is ascertained by such instrument, final judgment may be given thereon, it is error to refuse to admit such final judgment as evidence in a subsequent action, on the ground that the instrument sued on was not a note, since such judgment may be rendered on any written contract.

2. Where a court has jurisdiction of the subject-matter and of the parties to an action, it is error to refuse to admit a default judgment rendered thereon in evidence in a suit to set aside a fraudulent conveyance of the defendant's property, on the ground that the judgment was prematurely rendered, since such defect is an irregularity which cannot be raised in a collateral attack.

3. A judgment cannot be collaterally attacked for facts appearing in the instrument sued

on, where the instrument is not set out in the pleadings, but is only attached thereto as an exhibit, since such exhibit is no part of the record, and such attack must be based on the record.

Appeal from circuit court, Lawrence county; J. C. Lamson, Judge.

Suit by Reed Bros. against R. D. O. Nicholson and others to set aside a conveyance of land as fraudulent as to creditors. From a judgment in favor of defendants, plaintiffs appeal. Reversed.

Jas. M. McPherson and Wm. B. Skinner, for appellants. H. Brumback and Gibbs & Jennings, for respondents.

BRACE, P. J.

On the 7th day of July, 1896, the plaintiffs instituted suit against the defendant R. D. O. Nicholson in the Lawrence county circuit court by petition as follows: "Plaintiffs state that they are copartners, doing business under the name and firm of Reed Bros., and which firm is composed of S. S. Reed and Frank Reed; that the defendant Robert D. O. Nicholson, by his initials of R. D. O. Nicholson, by his promissory note herewith filed, dated October 15, 1895, promised, for value received, to pay J. A. Fretwell or bearer the sum of three hundred and sixty dollars, six months after date thereof, with interest thereon from date at the rate of eight per cent. per annum; that plaintiffs, for value, purchased said note before maturity, and are now the legal holders and owners of the same. Wherefore plaintiffs pray judgment for said sum of three hundred and sixty dollars yet due and payable, and interest thereon from date, and for proper relief in the premises." And thereupon, on the same day, sued out a writ of summons of that date against the defendant, returnable "on the first day of August term, 1896, of said court," which was duly served on the defendant, personally, on the 25th of July, 1896, 22 days before the first day of said term. Afterwards, on the 21st day of August, 1896, and on the fifth judicial day of said term, the said defendant failing to appear or plead to the petition, judgment was rendered in said cause as follows: "August 21, 1896, Fifth Day of Term. Reed Bros. vs. R. D. O. Nicholson. Judgment for plaintiff for $381.60. Judgment to bear 8% interest. Now at this day comes the plaintiff, but the defendant, although called, comes not, but makes default; and it appearing to the satisfaction of the court that the defendant has been duly notified of the commencement of this suit, and of the object and general nature thereof, more than fifteen days before the first day of the present term of this court, by process of summons personally served on the defendant by the sheriff of Lawrence county, and that the defendant wholly fails to appear and plead, answer, or demur to plaintiff's petition herein within the time required by law and the rules of this court, but wholly makes default herein, and the court, being fully advised in the premises, finds the issues for the plaintiff. It is therefore considered, ordered, and adjudged by the court that the plaintiff have and recover of and from the defendant R. D. O. Nicholson the said sum of three hundred and eighty-one and 60/100 dollars, together with eight per cent. interest on the same, together with their costs on the same laid out and expended; for all which execution may issue," — upon which judgment execution was issued, and returned nulla bona. Thereupon the plaintiffs instituted this suit, which is a proceeding in equity to set aside a certain deed executed and delivered by the said R. D. O. Nicholson to his wife and co-defendant, Nancy E. Nicholson, dated the 27th day of March, 1896, and duly recorded on the 30th of April, 1896, whereby he conveyed to her certain real estate described in the petition, for the expressed consideration of $4,500, on the ground, as alleged in the petition, that the same was so executed, delivered, and recorded without any consideration in fact, and for the purpose of hindering, delaying, and defrauding the plaintiff and other creditors of the said R. D. O. Nicholson, who it is charged has no other property out of which said judgment can be satisfied. The defendants filed separate answers to the petition, denying that the deed from R. D. O. Nicholson to Nancy E. Nicholson was made to defraud creditors, claiming the premises as a homestead, and pleading failure of consideration in the note on which the judgment was obtained. On the trial the plaintiffs offered in evidence the judgment, and the roll of the case in which it was rendered, to the admission of which the defendants objected, their objection was sustained, and the evidence was excluded. Thereupon the plaintiffs took a nonsuit, with leave, and,...