Shuck v. Lawton

• Decision Date: 28 March 1913
• Citation: 249 Mo. 168,155 S.W. 20
• Parties: SHUCK v. LAWTON et al.
• Court: Missouri Supreme Court

155 S.W. 20

249 Mo. 168

SHUCK v. LAWTON et al.

Supreme Court of Missouri, Division No. 1.

March 28, 1913.

1. JUDGMENT (§ 142) — DEFAULT — VACATION — MOTION.

Where defendants in default were served by publication only, and a motion to set aside, filed at the judgment term, showed that the publication was without an allegation in the petition that defendants were nonresidents or an affidavit of nonresidence filed at any time, the motion was properly granted.

2. JUDGMENT (§ 341) — VACATION — TRIAL TERM.

During the trial term, judgments may be set aside on motion of a party or by the court on its own motion.

3. JUDGMENT (§ 386) — VACATION — MOTION — STATUTES.

Under Rev. St. 1909, § 2121, providing that judgments of any court of record shall not be set aside for irregularity on motion, unless such motion is made within three years after the term at which the judgment was rendered, a judgment may be set aside at any subsequent term, within three years after its rendition, on motion for an irregularity patent of record which does not require proof dehors the record to establish it.

Error to Circuit Court, Shannon County; W. N. Evans, Judge.

Action by Ed. J. Shuck against Emma Lawton and others. From an order granting a motion to set aside a default judgment, plaintiff brings error. Affirmed.

Ed. J. Shuck, of Eminence, for plaintiff in error. Eugene H. Angert, of St. Louis, and L. B. Shuck, of Eminence, for defendants in error.

LAMM, J.

To the September term, 1907, of the Shannon circuit court, Mr. Shuck sued for damages for outlay in, and performance in specie of, a land contract. There was no service attempted to that term, and the petition says nothing about the nonresidence of defendants, or any of them, and makes no allegation upon which an order of publication could be based. Nor was an affidavit of nonresidence made and filed at any time. The next step in the case was proof of publication, reciting, inter alia, that the petition alleged that certain named defendants, to wit, all of them, "are nonresidents of the state of Missouri, so that the ordinary process of law cannot be served upon them in this state." This order was made by the clerk in vacation between the September term, 1907, and March term, 1908. Following at the heels of proof of publication of that order, at said March term, 1908, judgment went on default against defendants for the relief prayed.

During said judgment term, defendants appeared not, and no motions were filed on their behalf. Presently, on August 10, 1908, in vacation between the March and September terms, 1908, defendants appeared specially by counsel and filed a motion verified by affidavit to set aside the judgment, grounding their said motion on an absence of legal service of process, in this, to wit: That the record shows no personal service, and that the order of publication, purporting to be made by the clerk in vacation, is based on a false narration of fact therein, to wit, that the petition alleged defendants were nonresidents of the state of Missouri, when there was no such averment, nor was any affidavit of nonresidence filed at any time. There was another ground not material here. Thereupon movents caused a summons (with a certified copy of the motion annexed) to issue to Mr. Shuck, notifying him to appear to the motion on the first day of the September term, 1908. Service was had thereon, but Mr. Shuck saw fit not to appear. At the September term, the motion was continued. At the next March term, 1909, it was reached in due course, taken up, heard, and sustained (Mr. Shuck still standing mute and in default). The court found the allegations of the motion true, and vacated and annulled its former judgment. Thereat, within a year, Mr. Shuck brought error and served...