Stewart v. Stringer

• Decision Date: 31 October 1867
• Citation: 41 Mo. 400
• Parties: ELIAS C. STEWART and EDWARD C. CUNNINGHAM, Respondents, v. WILLIAM STRINGER, ELIZABETH STRINGER, and JOSEPH W. RUENZI, Appellants.
• Court: Missouri Supreme Court

41 Mo. 400

ELIAS C. STEWART and EDWARD C. CUNNINGHAM, Respondents,

v.WILLIAM STRINGER, ELIZABETH STRINGER, and JOSEPH W. RUENZI, Appellants.

Supreme Court of Missouri.

October Term, 1867.

Appeal from St. Charles Circuit Court.

Wm. A. Alexander, for appellants.

The judgment in this suit is founded on an error of fact, and may be set aside on motion at any time. There is no limitation in our statute book to proceedings to correct such judgments--Powell v. Gott, 13 Mo. 458; Randall v. Wilson, 24 Mo., 76.

The sheriff had a right by leave of court to amend his return to suit the facts at any time--Randalls v. St. Bt. Wm. Pope, 19 Mo. 157; Corby Ass., &c. v. Burns et al., 36 Mo. 194; Webster et al. v. Blunt et al., 39 Mo. 500.

The court ought to have admitted the evidence showing that Joseph W. Ruenzi never had any family, and was not a resident of the State at the time of the (pretended) service of the writ, as returned by the sheriff dated February 12, 1862--Wendell v. Mugridge, 19 N. H. 109; Walton v. Parsons, 4 McCord, (S. C.) 368; Watson et al. v. Watson, 6 Conn. 334; Owens v. Ranstead, 22 Ills. 161.

An action on a sheriff's bond for a false return is not always an adequate remedy, and a judgment obtained by a false return will be set aside--Owens v. Ranstead, 22 Ills. 161.

In this case there could be no suit on the sheriff's bond, it being more than three years from the date of the return of service of said writ to the time when Joseph W. Ruenzi found out or had any notice of the existence of the suit, or the return thereon by the sheriff--Limitation Act. R. C. 1855, § 4, p. 1048. In this case there were three defendants. The return shows service on the defendant Wm. Stringer, but does not show legal service on the other two defendants, Elizabeth Stringer and Joseph W. Ruenzi. As to the last two named defendants, the return is, “did leave a copy of the writ for Elizabeth Stringer and Joseph Ruenzi at their place of abode, with a free white person, a member of the family of the two other within named defendants, a free white person over the age of fifteen years old.”

R. C. 1855, p. 1223, § 7, provides for the service of the summons where there are several defendants. The law requires the officer to leave a copy of the writ for each defendant. Under sec. 8, there could be no constructive service on the defendants unless they had families; that is, where there is no personal service, there can be no service at all on the defendants unless they have families. The copy for the defendant must be left with a member of his or her family. The statute requires the copy to be left at the usual place of abode of the defendant, whereas the return states the copy was left at the place of abode, &c. Where there is a substitute for personal service, the mode prescribed must be strictly followed, and the return must show fully a literal compliance with all the requirements of the law--1 Morris (Io.) 357; 25 Mo. 410.

Lewis & Bruere, for respondents.

No case was presented within the statute for a setting aside of the judgment, even if the proper course to that end had been adopted. There was no petition for a review, either in form or substance, as required--R. C. 1855, p. 1280, § 13, & p. 1281, § 16.

The plea of infancy being one of personal privilege merely, was waived y the failure to answer, and could not be set up in any shape after judgment.

It was not competent for the defendant to contradict the sheriff's return on the summons, and testimony for that purpose was properly excluded--Diller v. Roberts, 13 Serg. & R. 64; Trigg v. Lewis, 3 Litt. (Ky.) 129: U. S. v. Lotridge et al., 1 McLean, C. C. R. 246; Newhall v. Provost, 6 Cal. 85; Hallowell v. Page, 24 Mo., 493; Bush Ass. v. Page, 24 Mo. 495; Delinger's Adm'r v. Higgins, 26 Mo. 180; Bank of Mo. v. Bray et al., 37 Mo. 196; 4 Mo., 228; 4 Mo. 315; Ellington v Moon. 17 Mo. 424.

If the appellant be permitted by this court to show that the sheriff's return was amended after the appeal to this court was perfected, the following authorities will be in point: See v. Bobst, 9 Mo. 28; Fairfield v. Payne, 23 Me. 498, 508; Thatcher v. Miller, 13 Mass. 270; Pilkey v. Gleason, 1 clarke, (Io.) 85; White R. Bk. v. Dooner, 29 Vt. 332.

Neither the statute (R. C. 1865, p. 70, § 6) nor the settled policy of the law admits of any amendment after judgment otherwise than in affirm ance of the judgment and to prevent its subsequent impeachment. Such amendments are never allowed with the object of impairing or destroying the validity of proceedings.

WAGNER, Judge, delivered the opinion of the court.

This appeal is prosecuted from a judgment of the St. Charles Circuit Court overruling a motion to set aside a prior judgment rendered therein. It appears from the record that at the March term, 1862, of the said court the plaintiffs recovered judgment on a promissory note against the defendants William Stringer, Elizabeth Stringer, and Joseph W. Ruenzi. There was no appearance to the action on the part of the defendants, and judgment was taken by default. At the November term, 1865, of the court, upon due notice given to the plaintiffs, Ruenzi presented his motion to set aside the judgment, and assigned for reasons that the judgment was rendered on a note executed before he had arrived at the age of maturity and while he was yet a minor, and that the suit was brought before he was twenty-one years old; that the return on the writ in said ause showed service on him by delivering a copy to a white member of his family at his place of abode, when in fact he had no family, and at the time of the so-called service he was not a resident of St. Charles county, and had no information, knowledge or notice of the said suit or udgment until within a few weeks past,...