Roberts v. Stone

• Decision Date: 16 February 1903
• Citation: 73 S.W. 388,99 Mo.App. 425
• Parties: G. G. ROBERTS et al., Appellants, v. S. A. STONE et al., Respondents
• Court: Kansas Court of Appeals

73 S.W. 388

99 Mo.App. 425

G. G. ROBERTS et al., Appellants, v. S. A. STONE et al., Respondents

Court of Appeals of Missouri, Kansas City

February 16, 1903

Rehearing Denied 99 Mo.App. 425 at 430.

Appeal from Livingston Circuit Court.--Hon. J. W. Alexander, Judge.

AFFIRMED IN PART AND REVERSED IN PART.

John G Parkinson and James W. Boyd for appellants.

(1) The false return made by the sheriff in an action at law may be attacked and set aside in court of equity upon a direct proceeding brought for that purpose. Phillips v Evans, 64 Mo. 17; Ryan v. Boyd, 33 Ark. 778; Ridgeway v. Bank, 50 Tenn. 522; Hamblen v. Knight, 60 Tex. 36; Constitution, art. 2, sec. 30; Smoot v. Judd, 161 Mo. 673. (2) Where a suit is brought in a county in this State wherein the plaintiff resides, against two defendants and both of them reside outside of that county and in different counties in this State, then if one of them should be found in the county where the plaintiff resides, and there is pretense of service of summons upon the other defendant in the county where he resides, such pretended service of summons does not give the court any jurisdiction whatever over him. R. S., sec. 562; Christian v. Williams, 11 Mo. 429. (3) The evidence in this case overwhelmingly and beyond reasonable doubt shows that M. C. Roberts, who was at the time stated visiting J. B. Turner in Livingston county, was never served with any summons whatever and that the return of the sheriff to that effect is absolutely false; that it is admitted by the defendants in this case and shown by the return of the sheriff of Carroll county that G. G. Roberts was not served with summons, nor was there any pretense of service upon him except by sheriff of Carroll county, in Carroll county.

Chas. A. Loomis for respondent.

(1) Where a judgment is regular on its face and the return of service of process by the officer is regular, a court of equity should not set aside a judgment at law, except on evidence which is clear, satisfactory and convincing beyond a reasonable doubt, proving the lack of service by the officer making the return. And the return itself is prima facie evidence of the material facts therein recited. Huntington v. Croutier, 33 Ore. 408; reported in 72 Am. St. Rep. 726 and a long list of cases cited in the opinion on page 729; Furman v. Furman, 60 Am. St. Rep. 645, and note; Quarrels v. Heirn, 70 Miss. 891; Hunt v. Childers, 5 V. 247, Lea; U. S. v. Gayles, 45 F. 107; Randall v. Collins, 58 Tex. 231; Starkweather v. Morgan, 15 Kan. 274; Jenson v. Crevier, 33 Minn. 372; Wyland v. Frost, 75 Iowa 209; Connell v. Gallagher, 36 Neb. 749; State ex rel. v. Devitt, 107 Mo. 573. (2) Where the evidence is conflicting and consists chiefly of oral testimony, the trial court's finding of facts will be greatly deferred to, by the appellate court, on account of the superior advantages possessed by the trial court for weighing the evidence and judging of the credibility of the witnesses. Hartley v. Hartley, 143 Mo. 216; Mathias v. O'Neill, 94 Mo. 520; Loring v. Atterberry, 138 Mo. 262; Shanklin v. McCracken, 151 Mo. 587; Parker v. Roberts, 116 Mo. 657; Chouteau v. Allen, 70 Mo. 290; Sharp v. McPike, 62 Mo. 300; Lins v. Lenhardt, 127 Mo. 271; Short v. Taylor, 137 Mo. 517; Erskine v. Loewenstein, 82 Mo. 301; Howell v. Canada, 69 S.W. 786. (3) Service of the defendant by the wrong name, or any misdescription of the defendant in the writ, or where his name is omitted in the writ, or where there is a want of a name in the writ, is not bad; it is good, and unless defendant appears and pleads the same in abatement, any defect in the writ pertaining to the description of the defendant is waived. Secs. 660 and 672, R. S. 1899; Thompson v. Elliott, 5 Mo. 118; 1 Chitty on Pleading, 486; Clay v. Burtis, 34 Mo. 92; Martin v. Barron, 37 Mo. 301; 1 Bac. Abr. 9, 2 Black 1120; 4 Barn. & Ad. 536; 6 Barn. & Cr. 165; 6 Moore 264; 3 Bing. 296; 4 Moore 517; 1 Bro. & B. 529; Smith v. Villiers, 1 Salk. 3 Pl. 7; Benson v. Derby, Ltd. Raym, 249; 2 Stra. 1218; Kronski v. Railway, 77 Mo. 362; Perry v. Woodson, 33 Mo. 347; Weber v. Ebling, 2 Mo.App. 15; Carpenter v. State, 8 Mo. 291; 1 Chitty on Plead. (16 Am. Ed.), 265; Skelton v. Sackett, 91 Mo. 377; Carrigan v. Schmidt, 126 Mo. 304; Turner v. Gregory, 151 Mo. 100; Blok v. Wilkerson, 62 Mo.App. 31; Hall v. Lane, 123 Mo. 633; 1 McQuillin's Pleadings & Practice, sec. 161; Telford v. Coggins, 76 Ga. 683; Vol. 20 Ency. Pl. & Pr. 1131; Lyon v. Crew Levick Co., 63 Ill.App. 329; Hammond v. People, 32 Ill. 446; Lindsey v. Delano, 78 Iowa 350; Vogel v. Brown Tp., 112 Ind. 300; Bank v. Jaggers, 31 Md. 38; Trull v. Howland, 10 Cush. (Mass.) 109; Smith v. Bowker, 1 Mass. 76; State v. Burtis, 34 Mo. 92; Clawson v. Wolfe, 77 N. Car. 100; Burton v. Ins. Co., 26 Ohio St. 467; Foshier v. Narver, 24 Ore. 441; Genobies v. West, 23 S. Car. 154; Waldrop v. Leonard, 22 S. Car. 120; Smith v. Patton, 6 Taut. 115, W. E. C. L. 330; Vol. 19, Ency. Plead. & Pract., 705; Green v. Reserve Ass'n, 79 Mo.App. 179. (4) Sections 660 and 662 should be liberally construed in support of the judgment. Bick v. Wilkerson, 62 Mo.App. 31 l. c. 33; Doan v. Boley, 38 Mo. 445. (5) S. A. Stone, plaintiff in the original judgment, resided in Livingston county; defendant M. C. Roberts resided in Caldwell county and defendant G. G. Roberts resided in Carroll county; defendant M. C. Roberts was found and served in Livingston county, the residence of the plaintiff, and the court then had jurisdiction to issue its writ and serve the other defendant, G. G. Roberts, in Carroll county. The court acquired jurisdiction over the subject-matter of the action and over the defendant, M. C. Roberts, by service on her in Livingston county, and jurisdiction once acquired is never lost. Sec. 562, R. S. 1899; State v. McDougal, 16 Mo.App. 414; Bank v. Knox, 47 Mo. 333-335; January v. Rice, 33 Mo. 409.

OPINION

SMITH, P. J.

--This is a suit in equity to obtain an injunction against the defendants to restrain the sale of real estate under an execution.

The material facts to be gathered from the record may be grouped in about this way, that is to say, the plaintiffs G. G. Roberts and Minnie C. Roberts, by the name of M. C. Roberts, executed their note, the latter as surety for the former, to the defendant Stone for two hundred dollars which they neglected to pay at maturity, so that an action was brought against them by the payee Stone in the circuit court of Livingston county to recover the amount due thereon. At the time of the commencement of the action the payee resided in Livingston county and one of the makers, G. G. Roberts, resided in Carroll county while the other, Minnie C. Roberts, resided in Caldwell county. The return of the sheriff on the writ of summons shows that the service thereof on the last-named defendant was in Livingston county by the delivery to her of a certified copy of the petition and writ. And it further appears from the return made on the writ by the sheriff of Carroll county that the defendant G. G. Roberts was served in that county, at a date subsequent to the service on his co-defendant, by the delivery to him of a certified copy of the petition and writ. At the return term of the writ neither of the defendants appearing, judgment by default was given against them for the amount due on the note. Subsequently, a writ of execution was issued on the judgment directed to the sheriff of Livingston county which was levied on certain real estate in which the defendants had, since the rendition of the judgment, by descent acquired an interest. Defendants, after the acquisition of the interest in the said real estate and prior to the execution levy, conveyed that interest by deed to a brother, A. G. Roberts. This suit was brought by the said A. G. Roberts and the two judgment defendants against the judgment plaintiff and the sheriff, the object of which was as stated at the outset.

The plaintiffs' petition alleged, inter alia, that the writ of summons in the action on the promissory note aforesaid was never served on the defendants, or either of them; that the return of service indorsed on said writs was false, and that the court in which the judgment was given was without...