Spring v. Giefing

• Decision Date: 30 July 1926
• Docket Number: 25379
• Citation: 289 S.W. 825,315 Mo. 525
• Parties: Elizabeth Spring, Appellant, v. E. G. Giefing, I. N. Carson, Jr., Will Berry, C. A. Clevenger and Louis Mueller
• Court: Missouri Supreme Court

289 S.W. 825

315 Mo. 525

Elizabeth Spring, Appellant, v. E. G. Giefing, I. N. Carson, Jr., Will Berry, C. A. Clevenger and Louis Mueller

No. 25379

Supreme Court of Missouri

July 30, 1926

Motion for Rehearing Denied January 13, 1927.

Appeal from Buchanan Circuit Court; Hon. L. A. Vories Judge.

Affirmed.

Christian Dobach and Perry A. Brubaker for appellant.

(1) The finding, judgment and decree is against the evidence and the weight of the evidence. It deprives appellant of her property without due process of law. She has had no day in court. Article V of Amendments to Constitution of the United States; Article II, Sec. 30, Constitution of Missouri. (2) The court admitted illegal and improper evidence offered on the part of the defendants and each of them, and it was error to admit such evidence. Exhibits 1, 2, 3, 4 and 5 were each admitted over the objection of the appellant. Objections were made that these letters could not have any effect; that if the judgment was void it would not make any difference what knowledge appellant was given of it. (3) The court refused to admit legal and proper evidence offered on the part of appellant, and it was error on the part of the court to refuse legal and proper evidence offered by plaintiff. When offered the same was admitted subject to the objection "that the matter has been adjudicated." (4) The court committed error in holding that the order allowing an appeal and the filing of the transcript in the case of Berry v. Hartley of the judgment rendered in said case before the justice of the peace, gave the circuit court any authority to enter judgment against plaintiff because she was surety on the appeal bond in said case, or for any reason. (5) The court committed error in holding that the judgment in the case of Berry v. Hartley rendered on or about June 29, 1921 in the justice-of-peace court, and admitted in evidence herein, was not a default judgment as to said Hartley. Secs. 2799, 2843, 2727, R. S. 1919. (a) The said justice of peace had no right or authority under the law to grant an appeal or file any transcript of the proceedings in the case of Berry v. Hartley in the circuit court, until a motion to set aside the default judgment had been filed and the costs paid in said default judgment. Secs. 2799, 2843, 2727, R. S. 1919. (b) No appeal should have been allowed by the said A. J. Gordon, Justice of Peace, because no motion was filed to set aside the said default judgment. Such motion should have been filed within ten days of June 29, 1921. Secs. 2799, 2800, 2801, 2802, R. S. 1919; Secs. 1528, 1529, 1530, 1531, R. S. 1919; Garnet v. Rodgers, 52 Mo. 145; Hessey v. Heitkamp, 9 Mo.App. 36; Smith v. Wineland, 21 Mo.App. 381; Julian v. Rogers, 87 Mo. 229. A default judgment cannot be set aside until the costs are paid. Sec. 2801, R. S. 1919; Hooker v. Railroad, 63 Mo. 449. (c) The fact that the justice of peace entered a default judgment on June 29, 1921, and then did not enter a final judgment in the case until June 30th, did not change the status of the case as to its being a default judgment against Hartley. The law requires him to do certain things in keeping his docket. Sec. 2727, R. S. 1919. The law allows him three days in which to enter a default judgment. Sec. 2843, R. S. 1919. Crooker Shoe Co. v. Fry, 104 Mo.App. 134. The fact that a default judgment was entered and then the entry of judgment was informal would not so far as appellant was concerned make it other than a default judgment. (6) The filing of this affidavit for appeal and appeal bond more than ten days after the judgment of the justice of June 29, 1921, makes the bond void. Sec. 2891, R. S. 1919; Zimmer v. Massee, 117 Mo.App. 344; Downing v. LaShot, 202 Mo.App. 509; Garnet v. Rodgers, 52 Mo. 145; Adams v. Wilson, 10 Mo. 341; Moore v. Winkler, 3 Mo.App. 596; Moore v. Damon, 4 Mo.App. 111; Barnes & Ivers v. Lynch, 3 Mo. 369; Hessey v. Heitkamp, 9 Mo.App. 36. (7) The fact that the appeal bond was not filed within ten days after the entry of judgment on June 29, 1921, will not authorize the entry of judgment by agreement against appellant. The fact that the appeal bond was not filed in time would not authorize the circuit court to take jurisdiction so far as appellant was concerned by consent. The fact that the parties may have appeared will not confer jurisdiction. Robinson v. Walker, 45 Mo. 117; Downing v. LaShot, 202 Mo.App. 509; 4 C. J. sec. 3349, p. 1267. (8) The sheriff, without any levy, advertised this property for sale and conducted a sale that was illegal and void. There were no bids. In fact the property was not sold. If it was sold it was sold at a sum that was barely more than nominal. Mangold v. Bacon, 237 Mo. 520; Siela v. Kneib, 176 S.W. 1052.

Bart M. Lockwood and I. N. Carson, Jr., for respondents.

(1) No final judgment was taken on Hartley's default before the justice of the peace on June 29, 1921, as the same was proved up and entered of record on June 30, 1921. Sec. 2799, R. S. 1919. (2) The appeal to the circuit court from the judgment of the justice of the peace, of June 30, 1921, was taken in time on July 11, 1921, as the 10th day for taking the appeal was Sunday, July 10, 1921. Bank v. Williams, 46 Mo. 17; Keys v. Keys, 217 Mo. 48. (3) The question of the validity of the appeal bond given by Hartley in the justice court and the validity of the appeal itself, as to appellant Elizabeth Spring, is res judicata. (4) The court's finding that no fraud had been practiced on the appellant in securing her signature to the appeal bond, and that the sale on execution was in due form and according to law will not be disturbed unless it is manifestly unjust.

OPINION

Graves, J.

This case is an outgrowth of one tried in a court of a justice of the peace in Buchanan County. The case before us is one begun by the filing of a petition in the circuit court of said county.

The petition is in three counts. Count one is the statutory proceeding to ascertain and determine title to a lot in St. Joseph, Missouri. Count two is in ejectment. The third count is in the nature of a bill in equity, in which it is sought to set aside a sheriff's deed to Lot Five, Block Twelve, in St. Joseph Extension Addition, an addition to the city of St. Joseph, Missouri.

This court will require further detail as to facts, infra. Defendants Giefing and Carson answered jointly. Defendant Berry answered for himself separately.

To get at the character of the third count, which is in the nature of a bill in equity, some preliminary facts had best be stated. On June 9, 1921, Will Berry, one of the respondents herein, filed a suit against Charlie Hartley and Lizzie King before A. J. Gordon, a justice of the peace in Washington Township, Buchanan County, Missouri. Service was had upon both defendants, June 10, 1921. The case before the justice was thus tersely outlined in the statement filed: "To damages to and conversion of one Paige Automobile, July 3, 1919, $ 300 due Will Berry." We show the character of the action to show that in the event of default there would have to be an inquiry as to damages before final judgment could be entered by the justice of the peace. The summons of the justice (served on June 10, 1921) was made returnable on June 21, 1921. The record of Gordon, J. P., then shows:

"Now on this 21st day of June, 1921, Will Berry, with his attorney Bart Lockwood appears and the evidence heard and Lizzie King duly called came out, but makes default. Hartley case continued to June 29, 1921.

"Now on this 22nd day of June, 1921, comes the plaintiff by Bart Lockwood, his attorney, and defendant Lizzie King by B. G. Voorhees, her attorney, and by agreement the default heretofore taken against Lizzie King is set aside and cause set down for June 29, 1921, 10 A. M.

"Now on this 29th day of June, 1921, this cause coming on to be heard, plaintiff appears and the defendant Charlie Hartley, being duly called, came not and makes default. Continued to June 30 as to Lizzie King.

"Now on this 30th day of June, 1921, this cause coming on to be heard, plaintiff appears with his attorney, Bart Lockwood, and the defendant Lizzie King by her attorney, B. G. Voorhees, and Charlie Hartley with his attorney, W. B. Norris. And the court having heard the evidence and having considered the same, finds that the plaintiff is entitled to recover from the defendant Charlie Hartley in the sum of two hundred fifty dollars.

"It is therefore adjudged by me that plaintiff recover from defendant Charlie Hartley the sum of two hundred and fifty dollars so found as aforesaid, together with the cost of this suit, and that plaintiff have execution therefor.

"It is therefore considered by the court that the plaintiff take nothing for his suit and that the defendant Lizzie King go hence without day and recover from the plaintiff her costs and charges in her defense expended.

"A. J. Gordon, J. P.

"Now on this 11th day of July, 1921, comes Charlie Hartley and files affidavit and bond in appeal. Bond approved and appeal allowed and this case is certified and filed in the Buchanan County Circuit Court with a true transcript of this docket and all original papers in the cause on file in my office.

"State of Missouri, County of Buchanan:

"I, the undersigned, a Justice of Peace for Washington Township, Buchanan County, Missouri, hereby certify the foregoing to be a full, true and complete transcript of all the entries and proceedings in the above entitled cause as the same appears of record on my docket 3 at page 46, and that the papers hereto attached are all original papers on file in my office in said cause. Given under my hand this 11th day of July, 1921.

"A. J. Gordon, Justice of Peace."

Hartley appealed to the circuit court from...