Smoot v. Judd

• Decision Date: 29 November 1904
• Citation: 83 S.W. 481,184 Mo. 508
• Parties: ELLA G. SMOOT, Appellant, v. G. S. JUDD et al
• Court: Missouri Supreme Court

83 S.W. 481

184 Mo. 508

ELLA G. SMOOT, Appellant, v. G. S. JUDD et al

Supreme Court of Missouri

November 29, 1904

Editorial Note:

This Pagination of this case accurately reflects the pagination of the original published, though it may appears out of sequence.

Appeal from Barton Circuit Court. -- Hon. W. W. Graves, Judge.

Affirmed.

Willis H. Leavitt and A. S. Marley for appellant.

(1) The law questions involved in the merits of this case were settled on the former appeal (161 Mo. 673). Conroy v Iron Works, 75 Mo. 641; Band v. Taylor, 62 Mo 338; Overall v. Ellis, 38 Mo. 209; Hombs v Corbin, 34 Mo.App. 397. (2) The pivotal question is one of fact as to whether Ella G. Smoot was served with process so as to be charged with knowledge of the suit when pending.

Thurman, Wray & Timmonds for respondents.

(1) The defendants' answer is not a plea of "confession and avoidance." The allegation in the petition is that the sheriff's return was false in this, that there was in fact no service whatever of summons on Ella G. Smoot. A general denial would have put in issue the question as to whether or not there was in fact service of the summons on Ella G. Smoot. The plea of "confession and avoidance" which places the burden of proof on defendants admits the existence of plaintiff's cause of action. Bliss on Code Pleading, secs. 240, 241; Ledbetter v. Ledbetter, 88 Mo. 60; State to use v. Williams, 48 Mo. 210; State ex rel. v. Rau, 93 Mo. 130; Cavender v. Waddingham, 2 Mo.App. 555; Sprague v. Rooney, 104 Mo. 360; Hurt v. Ford, 142 Mo. 301. The sheriff who served the original process had the unquestioned right to amend the return, so as to conform to the facts, under the sanction of the court rendering the judgment in the case of Judd v. Smoot. R. S. 1889, secs. 670, 672; Blaisdell v. Steamboat, 19 Mo. 158; Groner v. Smith, 49 Mo. 323; McClure v. Wells, 46 Mo. 314; Scruggs v. Scruggs, 46 Mo. 273; Bank v. Grewe, 84 Mo. 479; Dunham v. Wilfong, 69 Mo. 358; Feurt v. Caster, 174 Mo. 298. When the return of an officer is amended in the manner provided by law, it relates back to and has the same force and effect as if originally so made; in other words, it becomes the return. Webster v. Blount, 39 Mo. 500; Kitchen v. Reinsky, 42 Mo. 439. (2) Witness Samuel N. Smoot, plaintiff's husband, does not stand on an equality with the sheriff in law. His official position, oath, and bond, places his testimony with reference to his official duties above that of a private citizen. When the circuit clerk delivered to him the writ of summons with the copies and copy of the petition, it became his official duty to serve that writ in one of the ways provided by law. The law presumes that every public officer performs his duty. Leonard v. Sparks, 117 Mo. 117; McCallister v. Ross, 155 Mo. 94. (3) (a) A false return is one in which a sheriff, or other ministerial officer, states a fact contrary to the truth which is injurious to one of the parties, or some one interested in it. 1 Bouv. D. L., 573. (b) The amended return is not inconsistent with the original. Service at the time and place is the ultimate fact which gives the court jurisdiction of the person, and it is immaterial whether such service is had by leaving a copy, etc., or by delivering the copy to the person served. Knoll v. Woelken, 13 Mo.App. 275. (c) All the authorities agree that the sheriff's return to a summons is at least prima facie evidence of the facts therein recited with reference to the execution of such writ. Burgert v. Borcher, 59 Mo. 86; State ex rel. v. Devitt, 107 Mo. 576. (4) If a party, in a legal way, fairly acquires a legal right, a court of equity will not disturb it, although such a right gives an advantage to the party obtaining it. McCourtney v. Sloan, 15 Mo. 95. It is admissible to bring forward, by amendment, matters in a proceeding at law for the purpose of reinforcing a defense in equity, after equity proceedings are instituted, for the purpose of effecting the subject of the action at law. Nave v. Adams, 107 Mo. 421. Equity sometimes relieves one of his unfortunate blunder, but it never aids another to take an unfair advantage of him. Hayden v. Luffenburger, 157 Mo. 95.

MARSHALL, J. Robinson, C. J., concurs; Brace, J., concurs in paragraphs 2, 4, 5, 6, 12, and 13, and in the result; Burgess, J., concurs in toto; Gantt and Fox, JJ., concur in the result for the reasons expressed in the separate opinion of Fox, J.; Valliant, J., dissents in an opinion filed by him.

OPINION

In Banc

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, Missouri, 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 eight 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 twelve, instead of six, months, in which to redeem the land after it should be sold under execution. The land was then sold on March 10, 1892, and Judd became the purchaser of Mrs. Smoot's interest therein for $ 510, and received a sheriff's deed therefor.

Thus the matter stood until October 30, 1893, when, the time for redemption having expired and the Smoots having done nothing, Judd instituted a suit for the partition of the land. On February 23, 1894, she filed an answer in the said case, which recited that it was filed by leave, in which she denied that she had ever conveyed her interest in the land to Judd or authorized any one to do so for her, but she did not refer to or call in question in any way the validity of the judgment of Judd against herself and her husband. On motion the court struck out the answer, and she took no further steps in the case. On April 14, 1894, a decree in partition was rendered and on September 3, 1894, the land was sold under that decree, and the defendants Brand and Jackson became the purchasers and received the sheriff's deeds therefor, entered into possession and have remained in possession ever since. It is conceded that at some time, the date is not disclosed by the record, Mrs. Smoot sued the sheriff on his official bond, for $ 3,000 damages, for the loss of her land, by the sale under said personal judgment, alleging that his return upon the summons that he had served it upon her personally was false, and that upon a trial of that case she recovered a judgment for nominal damages.

On August 18, 1895, Mrs. Smoot instituted this suit in equity. The petition alleges nearly all the facts hereinbefore set out, and predicates a right to...