State ex rel. Pemiscot County v. Scott
| Decision Date | 23 March 1891 |
| Parties | The State ex rel. Pemiscot County, Plaintiff in Error, v. Scott et al |
| Court | Missouri Supreme Court |
Appeal from Pemiscot Circuit Court. -- Hon. John D. Foster, Judge.
Reversed.
Chas P. & J. D. Johnson for plaintiff in error.
(1) The defendants having appeared by attorney at the return term they waived all informalities in the service and return of the writ of summons. Bartlett v. McDaniel, 3 Mo. 55; Lindell v. Bank, 4 Mo. 228; Griffin v Samuel, 6 Mo. 50; Evans v. King, 7 Mo. 411; Hembree v. Campbell, 8 Mo. 572; Phillebart v. Evans, 25 Mo. 323; Schell v. Leland, 45 Mo. 293; Miller v. McCoy, 50 Mo. 15. (2) The final judgment in favor of the plaintiff in error, rendered at the September term, 1884, was regular in all respects, and, being so, cannot be set aside on motion of the defendants filed after the lapse of the term at which it was rendered. R. S. 1879, sec. 3684; Laws, 1883, p. 125; Hyatt v. Wolfe, 22 Mo.App. 191; Harbor v. Pacific, 32 Mo. 425; Ashby v. Glasgow, 7 Mo. 320; Hill v. City, 20 Mo. 584; Brewer v. Dinwiddie, 25 Mo. 351; Phillips v. Evans, 64 Mo. 22; Jones v. Hart, 60 Mo. 352. (3) The record shows that there was personal service of summons in the case upon all of the defendants; that the defendants entered their appearance by attorney, and that the final judgment in favor of the plaintiff in error was rendered by "agreement and consent." Defendants in error, in their so-called "bill in review," tacitly admit that they appeared by attorney, as the judgment recites, but that they did not agree or consent to the rendering of the judgment; as they appeared by attorney they were bound by his acts in the premises. Barlow v. Steel, 65 Mo. 611; Railroad v. Stephens, 36 Mo. 150; Davis v. Hall, 90 Mo. 660; Franklin v. Ins. Co., 43 Mo. 491; Tuppery v. Hertung, 46 Mo. 136; Tippack v. Briant, 63 Mo. 581; Bradley v. Welch, 100 Mo. 262; Gehrke v. Jod, 59 Mo. 528; Austin v. Nelson, 11 Mo. 192; Kerby v. Chadwell, 10 Mo. 393. (4) The order made by the court at the November term, 1885, setting aside the judgment originally rendered in favor of plaintiff, and the judgment entered in favor of the defendants at the May adjourned term, 1866, should be set aside by this court, and the original judgment rendered in favor of plaintiff at the September term, 1884, should be reinstated by this court. Hill v. City, 20 Mo. 584; Harbor v. Pacific, 32 Mo. 425; Jones v. Hart, 60 Mo. 352.
D. H. McIntyre for defendants in error.
(1) The petition for review, as it is called, and the affidavit to the same, alleged that the securities did not consent to the entry of the judgment of September 13, 1884; plaintiffs' answer denied the allegations of this petition. The court granted the petition of the securities; the judgment does not recite, nor does the record show, upon what particular grounds, but it will be presumed that the court found good and sufficient grounds to base its action upon. Long v. Long, 96 Mo. 180; Overholt v. Vieths, 93 Mo. 422. (2) The record shows that the securities deny that they agreed to the entry of the first judgment; and this denial implies also a denial that the attorney had authority to appear for them; they, therefore, did not appear to the action, and in consequence had a right to set aside that judgment at the next term of the court, even if they had been summoned under article 4, of chapter 33, section 2217, Revised Statutes, 1889. (3) Setting aside a judgment by default is a matter resting very largely in the discretion of the trial court; and appellate courts are not inclined to interfere with the exercise of this discretion. Freeman on Judgments [3 Ed.] sec. 541; Kribben v. Eckelkamp, 34 Mo. 480; O'Fallen v. Davis, 38 Mo. 269; Adams v. Hickman, 43 Mo. 168; Griffien v. Veil, 56 Mo. 310; Tucker v. Ins. Co., 63 Mo. 588; Judah v. Hogan, 67 Mo. 252. (4) The defendants were securities on a collector's bond; as such, their undertaking should receive a strict interpretation, their liability must be strictly made out, and they have the right to stand upon the very terms of their contract. Blair v. Ins. Co., 10 Mo. 560; State v. McGonigle, 101 Mo. 353.
OPINION
This is a suit brought by the county of Pemiscot on the official bond given by the defendant Scott, as collector of that county; the other twelve defendants are his sureties on the bond.
The county obtained judgment at the September term, 1884, of the circuit court, which was the return term of the writ. The judgment contains this recital: "Now at this day come the parties by attorney, and by agreement and consent judgment is rendered against the defendants, in the sum of $ 1,536.21."
Nothing further was done until the May term, 1885, at which time eleven of the defendant sureties filed a petition in the cause, called a "bill in review," praying that the judgment be set aside and for leave to answer. This petition for review states that, while the judgment contains a recital that it was entered by the consent and agreement of the defendants, "in truth and in fact these sureties made no such agreement and gave no such consent as specified in such judgment;" that petitioners are advised the judgment should have been simply an interlocutory one at that, the return, term; that the coroner's service of summons is illegal in that it does not show which defendant was first served with a copy of the writ and petition, and does not show that a copy of the writ was delivered to a member of the family of one of the defendants, whose name is stated; and that they have a meritorious defense in this, that the county court, after the bond had been approved, and without their consent, released one of the sureties. The county filed an answer, and the circuit court at the November term, 1885, set aside the judgment before entered, and gave defendants leave to answer, and accordingly they filed answer to the original petition.
A trial was had in July, 1886, which resulted in a judgment for the defendants declaring the bond "utterly null, void and of no force and effect." This judgment, or rather decree, is based upon a finding of the court therein recited that the bond "was, after its approval, mutilated, defaced and tampered with by the fraudulent erasure of the name of William Wilks, who had signed said bond, as one of the sureties." The county, it seems, filed motions for new trial and in arrest in due time, which were overruled, but filed no bill of exceptions. The case is now before us on writ of error.
1. The petition for a review must have been filed and sustained on the supposition that section 3684, Revised Statutes, 1879, as amended in 1883 (Laws of 1883, p. 125), applies to cases like the one in hand. That section provides for a review, upon a petition filed for that purpose, where there has been a final judgment against a defendant, "who shall not have been summoned, as required by this chapter, or who shall not have appeared to the suit," etc. The record before us does not contain a copy of the return made by the coroner to the writ of summons, so that we have no means of knowing whether the return is good or bad. For all the purposes of this case we shall assume that the service was and is defective. But the record shows that defendants appeared to the suit, and a petition for review cannot be sustained in any case where the defendant appeared, either in person or by attorney, no matter what may be the merits of his defense. Campbell v. Garton, 29 Mo. 343; Tennison v. Tennison, 49 Mo. 110.
The defendants, it is true, say in their petition for review, they did not consent or agree that the judgment should be rendered against them, but they do not dispute the fact that they appeared by attorney. The language used in their petition amounts to an admission that they did thus appear. The statute in question affords the defendant an opportunity to make defense where he has been served with constructive notice, as in case of newspaper publication, and did not appear to the suit (Jones v. Driskell, 94 Mo. 190, 7 S.W. 111); and in such cases the judgment may be opened upon a proper showing, though the judgment and all prior proceedings are regular. But it was never the intention of the statute to substitute a petition for review for a motion to set aside a judgment for irregularity. No such motion was filed in this case, and the question whether such a motion should be sustained is not before us on this record. The petition for a review utterly fails to disclose a case entitling the petitioners to the relief awarded. Indeed, the facts stated show affirmatively that the petitioners were not entitled to have any relief under the section of the statutes before mentioned. And this we are able to say from the record proper. Defects of a fatal character appearing upon the face of the record proper will be reviewed by this court even in the absence of a motion for new trial, or in arrest. Sweet v. Maupin, 65 Mo. 65; Weil v. Greene Co., 69 Mo. 281; McIntire v. McIntire, 80 Mo. 470.
On the facts as they are found in the final judgment of the circuit court there is no merit whatever in the defense interposed by the sureties. From these findings it appears that the bond was duly delivered and approved by the county court. After it had been approved it was mutilated, defaced and tampered with by the fraudulent erasure of the name of one of the sureties. It is true it does not appear by whom this erasure was made; but it could not have been made by the county. It must have been made by the surety or some county officer, or some third person. Such conduct on the part of the surety would not release him from liability on the bond. The alteration of a bond by an officer who is by...
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