State v. Tate

• Decision Date: 08 February 1892
• Citation: 18 S.W. 1088,109 Mo. 265
• Parties: STATE ex rel. OZARK COUNTY v. TATE et al.
• Court: Missouri Supreme Court

18 S.W. 1088

109 Mo. 265

STATE ex rel. OZARK COUNTY v. TATE et al.

Supreme Court of Missouri, Division No. 1.

February 8, 1892.

SETTING ASIDE JUDGMENT — GROUNDS — AMENDMENT AT SUBSEQUENT TERM.

1. In Missouri, a motion will lie to set aside a judgment for irregularity, in the same court, within three years from its rendition.

2. Where a judgment was rendered on a bond, against several obligors, one of whom was dead when the suit was brought, the other judgment defendants cannot, at a subsequent term, have the judgment set aside, on that account, as to themselves.

3. The entirety of a judgment in Missouri discussed, and the adjudications thereon reviewed.

4. A judgment cannot be vacated on motion, at a later term, because the petition on which it is founded does not state facts sufficient, etc. Such defect is not an "irregularity" within the statute regulating such motions.

5. Under the Missouri statute of jeofails, a court may, on motion, in affirmance of a judgment, strike out therefrom the name of a party against whom it was irregularly entered at a prior term.

(Syllabus by the Judge.)

Appeal from circuit court, Ozark county; J. F. HALE, Judge.

Action by the state ex rel. Ozark county against Tate and others to recover on a collector's bond. Judgment for plaintiff. From an order sustaining defendants motion to set aside the judgment and an order refusing plaintiff's motion to amend the record it appeals. Reversed.

Monks & Williams, for appellant. Evans & Love, for respondents.

BARCLAY, J.

The relator, for whose use and benefit this action runs, is Ozark county. The cause is based upon the official bond of an ex-collector, and alleged breaches thereof. Touching such proceedings, it is declared by section 882, Rev. St. 1889, that "every suit brought upon such official bond, to the use of the party aggrieved, and every judgment thereon, shall be deemed the private suit and judgment of the relator, in the same manner, in every respect, as if he were the nominal plaintiff, and such relator shall be liable for costs, as other plaintiffs." Same as section 583, Rev. St. 1879. The county is the real party in interest as plaintiff, and that fact brings the present appeal within the revisory jurisdiction of this court. Const. 1875, art. 6, § 12.

2. The matter presented for review concerns the correctness of the rulings on the circuit upon two motions, filed some years after the first judgment. These motions were, by consent, heard together, and the following facts developed: In 1887 plaintiff recovered judgment against defendant Tate, the ex-collector, and the other defendants, as sureties upon his official bond. This judgment was reached in due course upon pleadings in ordinary form, and findings by a referee to whom the issues were sent for trial by agreement of the parties. No motion for new trial was made by defendants, and the term of the judgment lapsed without any steps towards reviewing it. At the April term, 1889, one of the motions now under consideration was filed by defendants, by which they seek to set aside the judgment mentioned, for the reasons (1) that one of the defendants, J. J. Piland, named therein, was dead at the time the action was instituted; and (2) that the plaintiff's petition therein is insufficient. Thereupon the plaintiff, next day, made a motion to amend the judgment record, by striking out the name of J. J. Piland, for that he had never been served with process in the cause, being dead, and that the entry of his name was a misprision of the clerk. It further appeared, at the hearing of these motions, that, in the sheriff's return to the summons, no mention is made of service on J. J. Piland, but he is therein stated to be "not living." Plaintiff concedes that he was dead during the proceedings, as claimed by defendants. On this showing of facts, the trial court denied plaintiff's motion to amend the judgment, and sustained defendants' motion to vacate it entirely. The plaintiff excepted to these rulings, and, after unsuccessful motions to correct them, and preserving its points for review in due form, appealed to the St. Louis court of appeals. That court transferred the cause to the supreme court for the reason already noted. We will first review defendants' motion to set aside the judgment. It is evidently predicated on the section which sanctions motions to set aside judgments for irregularity, if "made within three years after the term at which such judgment was rendered." Rev. St. 1889, § 2235, same as section 3727 of 1879. The motion was not brought on by legal representatives of the deceased, in the interest of his estate, but by his co-defendants, evidently on the theory that the judgment is an entirety, and, being irregular as to the dead, must be vacated as to the living, defendants named in it. The action is an ordinary one, to enforce the obligation of a contract, joint and several, under our statutes. Rev. St. 1889, §§ 2384-2387. Plaintiff saw fit to bring all the defendants into one action, as it plainly had the right to do, (Rev. St. 1889, § 1995,) and obtained judgment accordingly, which might lawfully be enforced, in full, against any one of the defendants alone, leaving him to assert his equity to contribution against his co-obligees. The judgment was irregular, to say the least, as against J. J. Piland, the deceased. He was not served with process, and was reported "not living" by the sheriff, (though the effect of that part of the return we do not now discuss.) But was the judgment on this account irregular, as against the other defendants properly before the court? We think not. If there is any useful vitality in the Code provisions touching this subject, such irregularity furnishes no good reason to annul the judgment against the live defendants. Was it more than a mere defect in form, as to them? Rev. St. 1889, §§ 2101, 2117. Did it affect their substantial rights upon the merits? Id. § 2100. Surely not. The only basis for contending that it did, rests on the supposed entirety of every judgment at law. There are numerous remarks, scattered through our reported cases to the effect that such a judgment is an entirety, and must stand or fall compactly as to all parties defendant to it; and some decisions rest squarely upon that proposition. Smith's Adm'r v. Rollins, (1857,) 25 Mo. 408; Hoskinson v. Adkins, (1883,) 77 Mo. 537; Insurance Co. v. Clover, (1865,) 36 Mo. 392; Pomeroy v. Betts, (1862,) 31 Mo. 419. But there are also many final rulings inconsistent with that theory so broadly stated. It has been frequently held that, in a collateral proceeding, the fact that such a judgment is void as to one defendant does not of itself, necessarily, vitiate it as to others. Lenox v. Clarke, (1873,) 52 Mo. 115; Wernecke v. Wood, (1874,) 58 Mo. 352; Holton v. Towner, (1884,) 81 Mo. 366; Williams v. Hudson, (1887,) 93 Mo. 524, 6 S. W. Rep. 261. And in many cases, where judgments at law have been...