Smoot v. Judd

Decision Date29 November 1904
PartiesSMOOT v. JUDD et al.
CourtMissouri Supreme Court

6. In a suit to set aside a default judgment on the ground that the return of service of summons on defendant therein was false, it was shown that defendant, knowing of the judgment against her, took no steps to avoid it, but waited until her interest in land was levied on, and until a day or two before it was to be sold under execution, when she obtained from the judgment creditor time to redeem the land after sale on execution, but she did nothing under the agreement. The judgment creditor became the purchaser, and waited for her to redeem about a year and a half, when he filed a suit for a partition. She filed answer, which denied that she ever conveyed her interest in the land to the judgment creditor, but said nothing about the original judgment being void because of the return of service being false, or because she was a married woman when the debt was contracted and when the judgment was rendered. She submitted to the ruling of the court striking out the answer, and took no further steps to protect her interest, or to warn others of the claim that the return of the service of summons on her was false, and waited about a year after the partition suit before she sued to set aside the judgment. Held, that there was no equity in the bill.

7. In a suit to set aside a default judgment because the return of the service of summons was false, the only witness who testified that the return was false was the husband of plaintiff. His testimony was negative and uncorroborated. The sheriff testified to the truth of an amended return showing constructive service, which testimony was corroborated by testimony that plaintiff knew of the judgment against her, and only wanted time in which to pay it. Held to sustain a finding that the amended return of service of summons was true.

8. Where, on the issue whether a sheriff's return of service of summons was false, two chancellors refused to believe the only witness who testified that it was false, the Supreme Court on appeal will not interfere with a finding that the return was true.

9. Though the finding of facts in an equity case is not conclusive on appeal, the court will largely defer to it.

10. A sheriff's false return of service of summons cannot be impeached and the judgment based thereon cannot be adjudged void in a suit in equity to set the same aside merely because plaintiff in the original action, who was not guilty of any fraud in the procurement of the judgment, and who did not know that the return was false, became the purchaser at the execution sale.

11. The rule that a sheriff's return of service of summons in a suit is conclusive, and can only be attacked by a direct suit against the sheriff, is not in violation of the constitutional guaranty of due process of law, when defendant appears by the face of the record to have had notice served on him in the manner and by the officer provided by law.

12. In a suit to set aside a default judgment based on the ground that the sheriff's return of service of summons was false, it appeared that plaintiff in the original action obtained judgment, and purchased at execution sale the judgment debtor's interest in land, and brought partition. A third person purchased the interest at partition sale. Before purchasing, he consulted the original plaintiff's attorney. The third person had no knowledge of the false return. Held, that the third person was an innocent purchaser, even if the attorney had knowledge of the facts; he not being chargeable with the knowledge acquired by the attorney while he was not engaged in his business.

13. The attorney testified that, at the time the purchaser consulted him, neither he nor the purchaser had knowledge that the return of service of summons was false. Held, that the third person was an innocent purchaser.

14. The fact that a person against whom a default judgment has been rendered has merely recovered nominal damages in an action against the sheriff for a false return does not entitle him to maintain a suit in equity to set aside the default judgment based on the false return, showing a proper service.

Valliant, J., dissenting.

In Banc. Appeal from Circuit Court, Barton County; W. W. Graves, Judge.

Action by Ella G. Smoot against G. S. Judd and others. From a judgment for defendants, plaintiff appeals. Affirmed.

Willis H. Leavitt and A. S. Marley, for appellant. Thurmond, Wray & Timmonds, for respondents.

MARSHALL, J.

This is a bill in equity to set aside a judgment of the circuit court of Barton county rendered on September 18, 1891, in favor of G. S. Judd and against Ella G. Smoot and Samuel N. Smoot, and the execution issued thereunder, and the sheriff's deed to certain land in that county, made to said Judd as purchaser at such execution sale, and also to set aside a decree in partition rendered on September 3, 1894, in a certain suit wherein said Judd was the plaintiff and Lewis Gordon et al. were the defendants, and also to set aside the sheriff's deeds in partition to the defendants Amos Brand and William Jackson, the purchasers of said land at the partition sale, and to recover of said Judd, Brand, and Jackson the rents and profits of said land since September 29, 1894, and to declare the plaintiff entitled to an undivided one-fourth interest in the land. There was a decree for the defendants in the trial court, and the plaintiff appealed.

Compressed into as small a space as possible, the facts underlying the controversy are these: Ella G. Smoot and Samuel N. Smoot are, and at all times hereinafter mentioned were, husband and wife. Mrs. Smoot owned lots 4, 5, and 6 in Jasper, Mo., but it does not appear whether it was her separate estate or only a legal estate. Being such owner, she and her husband on April 15, 1887, executed and delivered to G. S. Judd their promissory note for $683.61, payable one day after date, with 8 per cent. interest, which recited to be for value received "for money this day borrowed of him, and to secure the payment of which, a mortgage is this day executed on lots 4, 5 and 6, in Jasper, Missouri." Thereafter, at some time not disclosed by the record, at the request of the Smoots, Judd released the mortgage. The debt was not paid, and on July 28, 1891, the debt being then over four years past due, Judd instituted suit in the Barton circuit court against Mr. and Mrs. Smoot. The petition did not describe the defendants as husband and wife. A summons was regularly issued, and was returned by the sheriff as having been served personally upon both Mr. and Mrs. Smoot. Mr. Smoot took the papers to Mr. John B. Cole, an attorney of the bar of that court, and directed him to look after the matter; saying however, he did not want to run up any expense in the case, but only wanted to get time in which to pay the debt. The attorney was under the impression that he was to represent both Mr. and Mrs. Smoot in the matter, but the record does not afford any competent evidence that Mrs. Smoot authorized her husband to act for her in employing the attorney. The case was allowed to go by default, and on September 18, 1891, a personal judgment was rendered against Mr. and Mrs. Smoot, for $925.13. On the 3d of February, 1891, Mrs. Smoot's brother, Peter A. Gordon, died, leaving certain land in Barton county, and Mrs. Smoot inherited an undivided one-fourth interest therein. On January 20, 1892, an execution was issued on said judgment, and was levied on Mrs. Smoot's interest in the land. Mrs. Smoot then went to see the attorney, Mr. Cole, who had been previously employed by her husband, and asked him to try to arrange the matter so that they could have six months in which to redeem the land after it was sold under execution. She also saw Mr. Judd's attorney, Mr. Wray, and asked him to give them such time to redeem. Accordingly Mr. Cole entered into negotiations with Mr. Wray looking to such an arrangement, with the result that a written agreement was entered into, giving the Smoots 12 instead of 6 months in which to redeem the land after it should be sold under execution. The land was...

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