State v. Trimble

• Decision Date: 03 July 1925
• Docket Number: No. 24860.,24860.
• Citation: 274 S.W. 712
• Parties: STATE ex rel. FABRICO CO v. TREMBLE et al., Judges.
• Court: Missouri Supreme Court

274 S.W. 712

STATE ex rel. FABRICO CO v. TREMBLE et al., Judges.

No. 24860.

Supreme Court of Missouri, in Banc.

July 3, 1925.

Certiorari by the State, on relation of Angelo L. Fabrico, to quash opinion and judgment of Kansas City Court of Appeals in reversing judgment of circuit court sustaining motion to strike petition for review of default judgment. Judgment quashed.

Marley & Reed, of Kansas City, for relator.

Griffin & Orr, of Kansas City, for respondents.

GRAVES, C.

Certiorari to Kansas City Court of Appeals. It would seem that relator herein was the plaintiff in an action in the circuit court of Jackson county, entitled Angelo L. Fabrico, Plaintiff, v. Joseph Marsala, Maria Marsala, and Diego Marsala, Defendants. Fabrico's wife is the daughter of the two latter named defendants, and the suit is one for the alienation of the wife's affections. Service was had in the circuit court (indicated by the return upon the summons made by the sheriff) in the following manner:

"Executed this writ in Jackson county, Mo., on the 14th day of March, 1919, by delivering a copy of this writ, together with a copy of the petition hereto attached, to the within named defendant Maria Marsala; he being the first defendant served.

                               "Overton H. Gentry, Sheriff
                               "By Henry Costello, Deputy
                

"And further executed this writ in Jackson county, Mo., on the 1st day of April, 1919, by delivering a copy of this writ to the within named defendant Diego Marsala, and further executed this writ in Jackson county, Mo., on the 1st day of April, 1919, by leaving a copy of this writ at the usual place of abode of the within named defendant Joseph Marsala, with a member of his family over the age of 15 years.

                            "Overton H. Gentry, Sheriff
                            "C. B. Child, Deputy."
                

Judgment by default in the sum of $2,000 was had by plaintiff in such action on April 7, 1920. At the September term, 1920, of said court, Joseph Marsala, under the name of Fortunato Marsala, filed in said cause a petition for review. May 12, 1922, Fabrico filed his motion to strike out such petition for review, stating, as grounds therefor, the following.

"(1) It would be error for the court to entertain and act upon the said motion; (2) it nowhere appears in the record that Fortunato Marsala is a party to this action; (3) parties to said action are estopped by the record in the above-entitled cause from disputing any of the facts apparent upon the face of the record; (4) all parties to the record in the above-entitled cause are concluded by the officer's return, and by the judgment in the said cause; (5) the record in the above-entitled cause is full and complete, and cannot be impeached."

The trial court sustained such motion, and Marsala appealed to the Kansas City Court of Appeals, where, upon a hearing, and by an opinion filed, the Court of Appeals reversed the judgment of the circuit court, and remanded the cause. It is their opinion and judgment that relator seeks to have quashed in the instant action. The opinion of the Court of Appeals is short, and is in words as follows:

"This is an appeal from the action of the court in sustaining plaintiff's motion to strike from the files defendant's petition for review.

"The facts show that on March 5, 1919, Angelo L. Fabrico sued Maria, Diego, and Fortunato Marsala, the last under the name of Joseph Marsala. The suit was for the alienation of the affection of the wife of plaintiff, who was the daughter of Maria and Diego Marsala and the sister of Fortunato Marsala. Summons was issued, and the sheriff made return that he had executed the writ by personally serving Maria and Diego Marsala and that he served Joseph Marsala by leaving a copy of the writ and petition at his usual place of abode, with a member of his family over the age of 15 years. None of the defendants appeared, but on April 7, 1920, judgment was rendered against all three of them in the sum of 82,090. Execution was ordered and levied on real estate of Fortunato Marsala, whereupon he filed this petition for review under the provisions of section 1532, R. S. 1919. This petition alleges that he, (Fortunato Marsala) was the only son of Maria and Diego Marsala and that he assumed that he was the person intended when Joseph Marsala was named as defendant in said suit; that he was never summoned and had a good defense, etc., and knew nothing of the suit until the execution was levied. Fabrico filed a motion to dismiss the petition for review, which the court overruled, and he applied to this court for a writ of prohibition to prevent the circuit court from hearing said petition. This writ was denied and he thereupon applied to the Supreme Court for a similar writ, which was denied by that court. State ex rel. v. Johnson, 293 Mo. 302, 239 S. W. 844. Thereafter on May 12, 1922, Fabrico filed the following motion to strike the petition for review from the files: "(1) It would be error for the court to entertain and act upon the said motion; (2) it nowhere appears in the record that Fortunato Marsala is a party to this action; (3) parties to the said action are estopped by the record in the above-entitled cause from disputing any of the facts apparent upon the face of the record; (4) all parties to the record in the above-entitled cause are concluded by the officer's return, and by the judgment in the same cause; (5) the record in the above-entitled cause is full and complete, and cannot be impeached."

This motion was sustained by the trial court, resulting in this appeal by said Marsala.

Fabrico's point is that section 1532, c. 12, It. S. 1919, by its terms, provides for a petition for review only when defendant has "not been summoned as required by this chapter," and, as section 1186 of chapter 12 provides service of summons by leaving a copy of the writ at the usual place of abode of the person to be summoned, with some member of his family over the age of 15 years, Marsala cannot maintain a petition for review, for the sheriff's return shows such service; that, while the service had upon Fortunato Marsala was substituted service, nevertheless it was personal service as distinguished from service by order of publication; that the sheriff's return cannot be contradicted or impeached in any way; and that Fortunato Marsala, "having been summoned as required by this chapter," cannot maintain a petition for review under section 1532.

The matter of personal service by leaving the writ or copy thereof at the usual place of abode of the defendant is purely statutory (21 R. C. L. 1280; 32 Cyc. 462), and many courts using the term "constructive service" have not distinguished between service by leaving a copy of the writ of summons at the abode of the defendant and service by publication in a newspaper. Many have referred to the former service as constructive service, no doubt, for the reason that at common law the only personal service known was the delivery of the writ or a copy thereof to the person to be served, or reading it to him. Technically, constructive service is service by publication, and service by leaving a copy of the writ at the usual place of abode of the defendant is substituted personal service. 32 Cyc. 461. There is no question but that substituted personal service is good personal service and one upon which a personal judgment may be rendered. Construing the provisions of section 1532, the courts have had occasion to discuss the difference between constructive and personal service, and have generally concluded that, where the service is constructive, the petition for review under section 1532 would lie. However, it will be noted that said section does not use any of those terms, nor does section 1186. Section 1532, reads as follows:

"When such interlocutory judgment shall be made and final judgment entered thereon against any defendant who shall not have been summoned as required by this chapter, or who shall not have appeared to the suit, or has been made a party as the representative of one who shall have been summoned or appeared, such final judgment may be set aside, if the defendant shall, within the time hereinafter limited, appear, and by petition for review, show good cause for setting aside such judgment."

The Supreme Court in a recent case has put at rest in this state what is meant by the provisions of section 1532. See Stanton v. Hanna, 199 S. W. 145, 146, where the court said:

"It is suggested that these provisions were enacted with reference only to cases in which jurisdiction has been obtained by publication. In terms it applies to all cases in which the defendant shall not have appeared to the action; and a final judgment by default has been entered against him; and we see nothing in the entire chapter of which it forms a part requiring a departure from that indicated by its words and their grammatical construction. Every kind of service which does not reach the consciousness of the defendant is, in a literal sense, `constructive.' It may be delivered in his own home, to a member of his own family who is interested against him in the litigation, to an ignorant and thoughtless child, or, if he receives it into his own hands, some accident or uncontrollable circumstance may keep him from the term of court to which it is returnable."

It is true that the Supreme Court in that case cites no authority other than the statute and makes no reference to decisions in this state holding to the contrary. See Mattocks v. Van Asmus, 180 Mo. App. 404, 168 S. W. 233; Campbell v. Garton, 29 Mo. 343; Fraternal Bankers of America v. Wire, 150 Mo. App. 89, 129 S. W. 765; Boas v. Land & Farm Co. (Mo. Sup.) 193 S. W. 806, 807. In Campbell v. Garton, supra, the Supreme Court (loc. cit. 345) holds that the proper remedy for one who has been summoned but fails to appear is provided in sections 1524 and 1525, R. S. 1919, (then R. S. 1855, p. 1278, §§ 4, 5). These sections provide at what time an...