Stuckert v. Thompson

• Decision Date: 03 March 1914
• Citation: 164 S.W. 692,181 Mo.App. 518
• Parties: OTTO STUCKERT, Appellant, v. CHARLES F. THOMPSON, Respondent
• Court: Missouri Court of Appeals

164 S.W. 692

181 Mo.App. 518

OTTO STUCKERT, Appellant, v. CHARLES F. THOMPSON, Respondent

Court of Appeals of Missouri, St. Louis

March 3, 1914

Appeal from Lincoln Circuit Court.--Hon. B. H. Dyer, Judge.

AFFIRMED.

Action affirmed.

Wm. A Dudley for appellant.

The service of the writ directed to the sheriff of Red River county by a deputy sheriff is valid because (a) A direction of a writ to a sheriff is broad enough to include anyone performing the functions of a sheriff and having authority to serve writs as a sheriff. Alexander v. Eberhardt, 35 Mo. 475; Bick v. Wilkinson, 62 Mo.App. 31. (b) The statute authorizes the service by "any officer authorized by law to serve process within the state or territory where such service is made," regardless of the direction of the writ. And the same statute makes the certificate of the clerk the only evidence of the officer's authority. Sec. 1778, R. S. 1899. (c) The misdirection of the writ, in any event, is a mere irregularity, so long as it informs the defendant that he is the person summoned. R. S. 1909, Sec. 2119 Subdivision 2; 32 Cyc. p. 430, Paragraph 3; Hansford v. Hansford, 34 Mo.App. 262; State v. Foster, 61 Mo. 549; City of Cape Girardeau v. Riley, 52 Mo. 424; Roberts v Stone, 99 Mo.App. 425; Doan v. Boley, 38 Mo 449. (d) If the point be made that, in Missouri, and it has been so held, a deputy sheriff can only act in the name of his principal, the point is answered by the statute, which provides that any officer authorized by law to serve process within the territory may serve. That is, he may serve in his own right, so far as jurisdiction in Missouri is concerned. Not because he is deputy sheriff, but because our statute confers the power upon him, because he has authority at home to serve process. The authority comes from our statute, not from Texas. Priest v. Capitan, 236 Mo. 446; Murdock v. Hillyer, 45 Mo.App. 287. The evidence of the authority is the certificate of the clerk. Murdock v Hillyer, supra; Priest v. Captain, supra.

R. H. Norton and O. H. Avery for respondent.

ALLEN, J. Nortoni, J., concurs; Reynolds, P. J., concurs in the result, but is doubtful as to the holding as to the return of the deputy.

OPINION

ALLEN, J.

This is an appeal from the action of the circuit court in quashing an execution issued upon a judgment rendered in an attachment suit.

The record discloses that in 1910 the defendant, then a nonresident of the State of Missouri, was the owner of an estate in certain lands in Lincoln county; and that plaintiff instituted an action by attachment against the said property of the defendant. Upon the filing of an affidavit of defendant's nonresidence, a writ of attachment was issued to the sheriff of Lincoln county, and a summons issued directed to the "Sheriff of Red River County, Texas." The latter writ found its way into the hands of one King Reed, said to have been a deputy sheriff of said county of Red River, State of Texas. And he, on February 22, 1911, made affidavit before the clerk of the county court within and for said last mentioned county, to the effect that he had served the summons, and the copy of the petition annexed thereto, upon the defendant, in the aforesaid county and State, on February 21, 1911, by delivering to defendant a true copy of said summons and petition as furnished by the clerk of the Circuit Court of Lincoln County, Missouri.

The clerk of said county court of Red River, Texas, certified to the official character of the affiant, King Reed, certifying that the latter was "a duly appointed and acting deputy sheriff within and for said county of Red River, and an officer of said county court," and "duly authorized by law to serve process within the said county of Red River and State of Texas." This certificate was signed personally by the clerk of said county court and attested with the seal of such court.

The defendant made default, and judgment was rendered for the amount of plaintiff's claim, and special execution ordered to issue against the attached property. The execution issued on such judgment, and to which the said motion to quash was directed, commanded the sheriff of Lincoln county as follows: "That of described real property (attached) and if the same be not sufficient, then of any other of the goods and chattels, lands and tenements of the said defendant, you will cause to be made the debt and the costs aforesaid," etc.

I. The judgment ordered special execution to issue, but the execution which was in fact issued commanded the sheriff to satisfy the judgment first out of the attached property, and if the latter be not sufficient then out of any other "goods, chattels, lands and tenements" of the defendant. It is quite clear therefore that the execution is one which could not be lawfully issued in an attachment proceeding, upon constructive service, for such execution may only issue against the property attached. [See Sec. 2331, Rev. Stat. 1909.]

II. However, the sole ground of the motion to quash the execution is that the court acquired no jurisdiction to render a judgment against the property of defendant, for the reason that the "return" of the writ of summons directed to the sheriff of Red River county, Texas, was void upon its face. It must have been upon this ground then that the circuit court sustained the motion to quash, and this upon the theory that the judgment was void; and this is the vital question here presented for review.

Section 1778, Revised Statutes 1909, provides that in any of the cases mentioned in the preceding section, 1770, the plaintiff may cause a copy of the petition, with a copy of the summons, to be delivered to each defendant residing or being without this State, and at any place within the United States or Territories, twenty days before the commencement of the term, etc.; and that such service be made by "any officer authorized by law to serve process within the State or Territory where such service is made, and shall be proved by affidavit of such officer, stating the time and manner of such service, made before the clerk or judge of the court of which affiant is an officer." And it is further provided that "such clerk or judge shall certify to the official character of the affiant, and to his authority to serve process within the State or Territory where such service was made."

In the case before us, this writ, as we have said, was directed to the "sheriff of Red River county, Texas." It was not served by such sheriff, nor by any one purporting to act for him or in his name and behalf, but by one King Reed, purporting to act as deputy sheriff, and who made return thereof in his own name. The affidavit, constituting proof of such service, was made before the clerk of the Texas court, who certified to the official character of the deputy sheriff, and that the latter was duly authorized by law to serve process within Red River county, Texas; and there is no question here relative to the certificate itself. [See Givens v. Harlow, 251 Mo. 231, 158 S.W. 355; Priest v. Capitain, 236 Mo. 446, 139 S.W. 204; Murdock v. Hillyer, 45 Mo.App. 287.]

It has long been the rule in this State, and it is the settled common law doctrine, that in order to constitute a valid return to service of process by a deputy sheriff, such return must be made in the name of the sheriff, by the deputy as such, and that a return made by a deputy sheriff in his own name is void. [See State ex rel. v. Fisher, 230 Mo 325, 340, 341, 130 S.W. 35, and authorities there referred to.] "The officer who executes process must return it, and when a deputy performs the duty, he must sign the return in the name of the sheriff or other principal by him as deputy. A return made in his own name by a deputy sheriff is void." [...