Smoot v. Judd

• Decision Date: 29 March 1901
• Parties: SMOOT, Appellant, v. JUDD et al
• Court: Missouri Supreme Court

61 S.W. 854

161 Mo. 673

SMOOT, Appellant, v. JUDD et al

Supreme Court of Missouri, First Division

March 29, 1901

Rehearing Granted 161 Mo. 673 at 692.

Appeal from Barton Circuit Court. -- Hon. D. P. Stratton, Judge.

Reversed and remanded.

Willis H. Leavitt for appellant.

(1) "A personal judgment can not be rendered against a married woman for a debt contracted prior to the revision of 1889, of our statutes." Bruns v. Capstick, 46 Mo.App. 397; Gazollo v. McCann, 63 Mo.App. 414; Higgins v. Peltzer, 49 Mo. 152; Weil v Simmons, 66 Mo. 617; Alexander v. Lydick, 80 Mo. 342; Wernecke v. Wood, 58 Mo. 352; Lincoln v Rowe, 64 Mo. 139; Coe v. Ritter, 86 Mo. 278; Asbury v. Odell, 83 Mo. 264; Music v Dodson, 76 Mo. 624; Caldwell v. Stephens, 57 Mo. 589; Gage v. Gates, 62 Mo. 412; Hoskinson v Adkins, 77 Mo. 540; Long v. Cockrell, 55 Mo. 93; Napton v. Leaton, 71 Mo. 367; Bauer v. Bauer, 40 Mo. 61; Corrigan v. Bell, 73 Mo. 53. Such a judgment is elsewhere absolutely void. Higgins v. Peltzer, 49 Mo. 152; Caldwell v. Walters, 18 Pa. St. 79; Dorrance v. Scott, 3 Whart. 313; Morse v. Toppan, 3 Gray, 411; Watkins v. Abrahams, 24 N.Y. 72; Griffith v. Clark, 18 Md. 463; 1 Black on Judgments, secs. 188, 190, pp. 219, 223; Spencer v. Parsons (Ky.), 13 S.W. 72; Parsons v. Spencer, 83 Ky. 305; Stevens v. Deering (Ky.), 9 S.W. 292; Hartman v. Ogborn, 54 Pa. St. 120; Graham v. Long, 65 Pa. St. 383; Swayne v. Lyon, 67 Pa. St. 439; Vandyke v. Wells, 103 Pa. St. 49; Davis v. Foye, 15 Miss. 64; Cary v. Dixon, 51 Miss. 593; Mallett v. Parham, 52 Miss. 921; Norton v. Meader, 4 Sawy. 603; White v. Foot, 29 W.Va. 385; Tavenner v. Barrett, 21 W.Va. 692. (2) While absence of coverture in the record proper is not decisive of the question whether a personal judgment against a married woman, based upon a presumed contract made prior to the revision of 1889 of our statutes, is void; yet, in this State, it does determine the question whether a bill in equity will lie, the party grieved being out of possession, and parties in possession holding a sheriff's deed. Beedle v. Mead, 81 Mo. 297; Clark v. Ins. Co., 52 Mo. 272; Groner v. Smith, 49 Mo. 324; Gazollo v. McCann, 63 Mo.App. 414. (3) The promise and contract of plaintiff having been made by her promissory note prior to the revision of 1889, it did not create any dormant obligation which could be made effective by that act, but was null and void the same after as before its passage. Bruns v. Capstick, 46 Mo.App. 403; Van Rheeden v. Bush, 44 Mo.App. 286; Gazollo v. McCann, 63 Mo.App. 421. (4) The separate estate of the wife, can only be reached for debts contracted by the wife during coverture, "in an action to subject the separate estate of the feme covert to the payment of her debts, and such an action is essentially a proceeding in rem. It is to reach specific property, which equity implies she intended to pledge or charge with the payment of the debt contracted. The petition must set out the property so intended to be charged; and, of consequence, that property must be in existence, so that if execution went instanter, there would be a res for the judgment to operate upon." The note given by Mrs. Smoot is dated April 15, 1887, and her legal statutory separate estate, inherited from her brother, did not come to her until 1891. The estate, therefore, was not in esse when Mrs. Smoot executed the note, and the law, therefore, will not presume that she intended to charge her separate estate with the Judd indebtedness; and especially so, when she charged in writing, specific property, when the debt was contracted. Arnold v. Brockenbrough, 29 Mo.App. 637; Osborne v. Graham, 46 Mo.App. 34; Boatmens Sav. Bank v. Collins, 75 Mo. 280; Corn v. Brook, 21 Barb. 548; Kern v. Paff, 44 Mo.App. 33; Siefert v. Jones, 84 Mo. 597. (5) The attempt of appellant to intervene in the partition suit by appearance and answer and the action of the court refusing to permit her to be made a party defendant, gave the court no jurisdiction over her in that action, and she is not bound, affected or estopped by the decree in that case. Windsor v. McVey, 93 U.S. 274. This case is cited and approved in Dennison v. City of Kansas, 95 Mo. 429, and Williams v. Monroe, 125 Mo. 588. (6) If we are right in our position that a judgment against a married woman, based up a contract made prior to the revision of 1889, of our statutes, is a nullity, for the reason that, being non sui juris, there is no juristic person upon whom the court can act, then it follows, as a logical sequence, that there never was, in legal contemplation, any person in esse, against whom process could run, or upon whom the sheriff could execute such process; and, therefore, the motion of defendants' attorney that the sheriff be permitted, in the equity suit, to amend his return in the action at law, so as to show a radically different service, should have been denied, for there was nothing to amend by. Alderson on Judicial Writs and Process, sec. 72, pp. 127-129; sec. 192, p. 568; Durham v. Heaton, 28 Ill. 264; State v. Davis, 73 Ind. 359; Furnis v. Ellis, 2 Brock, Rep. 14; Barber v. Swan, 4 Greene (Ia.), 352; Ledford v. Weber, 7 Ill.App. 87; Railroad v. Warden, 73 Mo.App. 122. Moreover, "the rule prevails that, as to the officer, the return is conclusive. He can not contradict or vary it." Alderson on Judicial Writs and Process, sec. 195, p. 577; Duncan v. Gerdine, 59 Miss. 550; Hoffer v. Reed, 3 Grant's Cases (Pa.), 245; Ayers v. Duprey, 27 Tex. 593; Eastman v. Bennett, 6 Wis. 232; State v. Penner, 27 Minn. 269. (7) The personal judgment against Mrs. Smoot being void, the execution sale thereunder, sheriff's deed to Judd, decree in partition, and sheriff's deeds to Brand and Jackson, are all void ab initio. 1 Freeman on Judgments (4 Ed.), sec. 117, p. 116; Higgins v. Peltzer, 49 Mo. 152; Schmidt v. Niemeyer, 100 Mo. 207; Jones v. Driskill, 94 Mo. 190; Cloud v. Inhabitants, 86 Mo. 366; Miller v. Schnebly, 103 Mo. 374; Gabriel v. Mullen, 30 Mo.App. 468; Newton v. Newton, 32 Mo.App. 162. (8) Appellant's remedy is a bill in equity, and in equity she can attack a return in an action at law, though not disclosing want of jurisdiction, and in every respect regular upon its face. 2 Freeman on Judgments (4 Ed.), sec. 495; Owens v. Ranstead, 22 Ill. 161; Crafts v. Dexter, 8 Ala. 577; Dunklin v. Wilson, 64 Ala. 162; Rice v. Tobias, 89 Ala. 214; Ryan v. Boyd, 33 Ark. 778; Stole v. Hill, 50 Ark. 458; Hansworth v. Sullivan, 6 Mont. 203. And that, too, where the judgment recites that "defendant has been duly and legally served." Bank v. Eldridge, 28 Conn. 536; Newcomb v. Dewey, 27 Iowa 381; State v. Skerry, 31 Iowa 582; Ridgeway v. Bank, 11 Hump. 522; Owens v. Ranstead, 22 Ill. 161; Johnson v. Coleman, 23 Wis. 452; Crawford v. Redus, 54 Miss. 700.

Thurman, Wray & Timmonds for respondents.

(1) Appellant was sui juris. The statute expressly provides that she may contract, and be contracted with, sue and be sued, as a feme sole. R. S. 1889, sec. 6864; Brows v Dressler, 125 Mo. 589; Clow v. Chapman, 125 Mo. 101; Long v. Martin, 71 Mo.App. 569; Huss v. Culver, 70 Mo.App. 514. (2) Jurisdiction of the subject-matter is the power to adjudge concerning the general question involved. Railroad v. Lowder, 138 Mo. 533; Scott v. Smith, 104 Mo. 419; State ex rel. v. Neville, 110 Mo. 345; Music v. Railroad, 114 Mo. 309; Hope v. Blair, 105 Mo. 85; Adams v. Cowles, 95 Mo. 501; Thompson v. Railroad, 110 Mo. 149; Jones v. Driskill, 94 Mo. 190; Rees v. McDaniels, 115 Mo. 149; U. S. v. Arredondo, 6 Peters, 709; R. I. v. Mass., 12 Peters, 718; 1 Bouvier L. D., p. 769; 1 Rapalje L. D., p. 702. (a) The circuit court being a court of general jurisdiction, there is no subject of litigation beyond its jurisdiction except such as are conferred on courts of limited jurisdiction. Wonderly v. Lafayette, 150 Mo. 635. (b) Every presumption is to be indulged in favor of the jurisdiction of a court of general jurisdiction. Buddecke v. Ziegenhein, 122 Mo. 239; Truesdail v. McCormick, 126 Mo. 39. (c) Where there is jurisdiction of the person and subject-matter, the judgment is valid, although the petition fails to state a cause of action. DeGraw v. DeGraw, 7 Mo.App. 121; Dollarhide v. Parks, 92 Mo. 178; Holt Co. v. Cannon, 114 Mo. 514; Winningham v. Trueblood, 149 Mo. 572. (3) The appellant appeared in the partition suit of Judd v. Downing, in the Barton Circuit Court, through which the respondents obtained title, and by her answer in that case set up a defense, in substance the same facts she now sets up as the basis of the relief sought in this suit in equity. Her answer was by the court held insufficient and on motion stricken out. She not having appealed from that judgment, but having abided the decision and ruling against her by the circuit court having jurisdiction of that case, she has had her day in court on the issues in this case and can not now, as against these respondents, again have them adjudicated. Caldwell v. White, 77 Mo. 471; Shelbina Hotel Association v. Parker, 58 Mo. 327; Stevenson v. Edwards, 98 Mo. 622; Case v. Garton, 33 Mo.App. 597. (4) This action could not be maintained if the judgment against appellant in the case of Judd v. Smoot was void. If the judgment was void, she never was divested of title, and the entire proceedings resting on that judgment are a nullity, and she has an adequate remedy at law for the recovery of the real estate in possession of respondents. Courts of equity do not interfere to do a nugatory act. A decree of the court of equity can not make void proceedings "more void." Railroad v. Reynolds, 89 Mo. 146; Railroad v. Lowder, 138 Mo. 533. A court of equity will not entertain jurisdiction to remove a cloud from plaintiff's title when the defendant is in possession of the property; the...