Stafford v. Burroughs
| Decision Date | 02 April 1945 |
| Docket Number | 39203 |
| Parties | Helen Stafford, Lula Bredouw and J. N. Burroughs, Plaintiffs in Error, v. Lillian Burroughs et al., Defendants in Error |
| Court | Missouri Supreme Court |
From the Circuit Court of Oregon County Civil Appeal Gordon Dorris, Judge
Appeal Dismissed
Plaintiffs instituted a proceeding under the provisions of Section 1688 et seq., R.S. 1939, Mo. R.S.A. § 1688 et seq., to establish a deed alleged to have been destroyed, and the record of which, it was alleged, had been unlawfully changed and obliterated. The trial court sustained a demurrer to the petition and plaintiffs refused to further plead. Plaintiffs sued out a writ of error to review the consequent judgment. The writ was issued prior to the effective date January 1, 1945, of the Civil Code of Missouri, Laws of Missouri 1943, p.353 et seq.
A defendant (defendant in error) had moved, previous to the filing of her brief on the merits herein, to dismiss the writ upon the ground plaintiffs (plaintiffs in error) have failed to comply with Section 1217, R.S. 1939, Mo. R.S.A. § 1217, in that the notice of issuance of the writ was forwarded by mail to defendants' counsel instead of by service as required by the section.
The suing out of a writ of error is the commencement of a new action to annul and set aside the judgment of a trial court. While the writ is of right, and has occupied an important place in a judicial system which proceeds upon inquiry and only condemns upon full opportunity for hearing, the law has carefully guarded against its use for the obstruction of justice by interminable litigation. The requirements of the statute must be strictly followed. The word "served" in Section 1217, supra, includes the doing of an act which may, in form and substance, be made a record of this court by which the court can ascertain its own jurisdiction upon a motion to dismiss authorized in the last clause of the section. State ex rel. Schuhart v. Rose, 296 Mo. 156, 246 S.W. 196; Kreienkamp v. Oetting, Mo.App. , 183 S.W.2d 320; Winchester v. Winn, 225 Mo.App. 288, 29 S.W.2d 188. Service by mail is not included within the meaning of the word "served" and is held to be ineffective. State ex rel. Schuhart v. Rose, supra; Kreienkamp v. Oetting, supra. Plaintiffs contend the service of notice of issuance of the writ has been waived by the subsequent filing of a supplemental abstract of the record and brief in this court. This contention is ruled against ...
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