State ex rel. Williams v. Berrey
| Decision Date | 09 April 1973 |
| Docket Number | No. 56752,56752 |
| Citation | 492 S.W.2d 731 |
| Parties | STATE of Missouri ex rel. Anita Louise WILLIAMS, Relator-Appellant, v. Robert W. BERRY, III, Magistrate, Fourth District, Jackson County, Respondent. |
| Court | Missouri Supreme Court |
James L. Muller, Richard F. Halliburton, The Legal Aid and Defender Society of Greater Kansas City, Inc., Kansas City, for relator-appellant.
Kenneth E. Bigus, Kansas City, for respondent.
The questions in this prohibition appeal involve the replevin statutes of Missouri. They are: (1) does a magistrate court have the jurisdiction to enter a default judgment for possession where there has been no service of process on the defendant but the chattels have been taken by the sheriff pursuant to a replevin writ and bond and delivered to the plaintiff, and (2) whether or not property was taken from the possession of relator-appellant in violation of the due process clause of the U.S.Const., Amendment 14, under Fuentes v. Shevin and Parham v. Cortese, 407 U.S. 67, 92 S.Ct. 1983, 32 L.Ed.2d 556 (1972), hereinafter referred to as Fuentes v. Shevin.
Relator-appellant, Anita Williams, filed this prohibition suit in the Circuit Court of Jackson County against respondent Robert W. Berrey, III, magistrate judge, seeking an order commanding respondent to quash a certain summons, return and writ of replevin in a magistrate court replevin suit in which relator-appellant was defendant and Midwest Furniture & Utilities, Inc. (hereinafter Midwest) was plaintiff upon the grounds that the magistrate lacked jurisdiction to enter judgment against relator-appellant.
The attack upon the constitutionality of the Missouri replevin statutes necessitates a construction of the Constitutions of Missouri and of the United States and, therefore, this court has jurisdiction. Mo.Const. Art. V, § 3, V.A.M.S., as amended.
Respondent has stipulated that the statement of facts as set forth in relator-appellant's brief is correct. The facts necessary to an understanding of the issues will be set forth.
On July 22, 1970, Midwest filed a statement and affidavit in replevin in magistrate court alleging that it was entitled to the possession of eleven items of personal property. The items consisted of a bedroom set, kitchen stove, refrigerator, beds, mattresses and springs. The value was stated to be $1,560.70 and it was alleged that the chattels were wrongfully detained by defendant Anita Williams; that they had not been seized under any process, etc.; that the property had been injured in the amount of $500; that for the taking and detention thereof Midwest was damaged $500; that Midwest will be in danger of losing said property unless it be taken out of the possession of defendant. The prayer sought a judgment for possession, $500 damages for the taking and detention thereof and injuries thereto, and attorneys' fees in the sum of $500. Bond in the sum of $3,121.40 was posted. On August 10, 1970, the clerk of the magistrate court issued the replevin writ over the stamped facsimile signature of the magistrate in accordance with established custom. The replevin writ commanded the constable 'to take (the described property) from the possession of the defendant . . . and to deliver the same to the plaintiff', and the writ further commanded the constable to 'summon the said Anita Louise Williams . . . to appear before (the magistrate) on the 9th day of September, 1970 at 10 o'clock in the forenoon, to answer to the complaint of (the plaintiff Midwest).'
On August 17, 1970, the constable went to Anita Williams' home, forcibly broke and entered the house and removed therefrom all of the property listed in the writ, all without notice to, or knowledge or consent of Anita Williams or any member of her household.
There was no service of the writ or summons upon Anita Williams. The constable's return is that the writ was executed 'by taking the within named merchandise and giving to plaintiff.'
On September 16, 1970, Anita Williams, by special appearance, filed a motion to quash the summons and return for want of proper service on her.
On October 14, 1970, Anita Williams again appeared specially and filed a motion to quash the writ of replevin alleging the unconstitutionality of the statutes under which the writ of replevin was executed.
On October 26, 1970, the court overruled the motion to quash the summons and return and the writ of replevin. The attorneys for the parties were present in court. While some differences arose between the magistrate and the attorney for Anita Williams with respect to the efforts of the attorney for Williams to file a petition for writ of prohibition immediately prior to the entry of a default judgment against Williams, suffice it to say that the magistrate, immediately following his order overruling the motions to quash, entered a judgment for plaintiff by default for possession of the chattels and costs.
Throughout the magistrate court proceedings defendant Anita Williams never pleaded or asserted any defense to the merits nor did she enter her appearance generally. At no time did Midwest obtain any type of service of process on her. The only official act that was performed by the constable was to carry out the order of the magistrate to seize the chattels and deliver them to plaintiff Midwest.
The entry of the default judgment by the magistrate immediately followed the magistrate's order overruling the motions to quash, and immediately thereafter Anita Williams filed her petition for writ of prohibition in the Circuit Court of Jackson County. The substance of the petition for writ of prohibition is the same as the motions to quash filed in magistrate court referred to above. The relief sought in circuit court was an order commanding the magistrate to quash the summons and return and the writ of replevin and to dismiss said magistrate court action and to refrain from any further proceedings in said action.
Following an evidentiary hearing in circuit court, the court entered its findings of fact, conclusions of law and judgment. The court found, inter alia, that Midwest filed its replevin action in magistrate court and posted the appropriate bond; that the writ was served by seizure of the property described therein; that Anita Williams was not personally served with the writ of replevin; that Anita Williams appeared specially in magistrate court to file motions to quash the summons and return and the writ, which motions were overruled; that Anita Williams informed the magistrate of her intention to file a petition for writ of prohibition; and that the magistrate entered judgment in the cause as follows, 'Judgment for plaintiff by default; possession of chattels; time of judgment, 10:29 a.m.'
The court concluded that the magistrate had jurisdiction over the property of relator and was empowered to enter a default judgment in favor of plaintiff Midwest for possession of chattels; that Anita Williams had the legal right to file her petition for writ of prohibition in circuit court, and that chapter 533, RSMo 1969, Missouri replevin statutes, is in all respects constitutional. The court then quashed the preliminary writ of prohibition theretofore entered and dismissed Anita Williams' petition for writ of prohibition.
Following an unavailing motion for new trial, relator-appellant Williams appealed from the judgment of the circuit court denying her petition for writ of prohibition.
In the instant case the constable executed that portion of the writ commonly known as the order of delivery by seizing the chattels and delivering them to Midwest. This was the only official act that was performed by the constable. Respondent contends this act constituted service of process on relator-appellant.
Sec. 533.290, RSMo 1969, provides, 'Process shall be issued and served in the same manner as provided for service of process in other civil cases before magistrates, and the order of delivery and summons may be in the following form: . . ..'
Sec. 533.310, RSMo 1969, sets forth the manner by which the constable (officer) shall execute the writ of replevin. It states in part, 'The officer shall execute the writ by taking the property therein mentioned, and delivering it to the plaintiff . . ..'
Sec. 517.110, RSMo 1969, in pertinent part, provides:
Sec. 533.290, supra, requires that the process shall be served in the same manner as provided for service of process in other civil cases before magistrates and requires that a summons be part of the process in magistrate replevin actions. Sec. 517.110, supra, designates the method by which summons is to be served in magistrate court actions unless the procedure for service of the summons is otherwise provided for by law. Sec. 533.310, supra, sets forth the procedure to be employed by the officer (constable) in executing that portion of the writ requiring that the chattels be seized and delivered to the plaintiff--commonly called the order of delivery. There is no separate procedure found in the magistrate replevin statutes for service of summons. Consequently service of the summons must be made in accordance with § 517.110.
The execution of the order of delivery pursuant to § 533.310 does not, in and of itself, constitute...
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