The State ex rel. Bond v. Fisher

• Decision Date: 20 July 1910
• Parties: THE STATE ex rel. HENRY W. BOND v. D. D. FISHER, Judge, and SALLIE BOND
• Court: Missouri Supreme Court

130 S.W. 35

230 Mo. 325

THE STATE ex rel. HENRY W. BOND v. D. D. FISHER, Judge, and SALLIE BOND

Supreme Court of Missouri

July 20, 1910

Peremptory writ granted.

William C. Marshall and Thomas Bond for relator.

(1) At common law the sustaining of a motion in arrest of judgment has the effect of putting an end to the case. On this proposition the authorities are uniform. 23 Cyc. Law and Proc., p. 825. And if it does not award a venire facias de novo, it operates as a discontinuance and dismisses defendant without day. 2 Ency. Pl. and Pr., p. 820; 3 Blackstone's Comm. 393, note 20; Kauffman v. Kauffman, 2 Wharton (Pa.) 147; Butcher v. Metts, 1 Miles (Pa.) 233; Raber v. Jones, 40 Ind. 441. (2) The only instances in which the sustaining of a motion in arrest in a civil case, without any further order therein at the same term does not work a discontinuance of the action and dismiss the defendant without day, are those specified in section 804, R S. 1899. By the plain terms of this statute the sustaining of a motion in arrest does not necessarily result in a new trial. It does so only in those cases where the motion was sustained for an error which could have been amended before the trial. Stid v. Railroad, 211 Mo. 415. (3) This construction of this statute by the Supreme Court is also the construction which the Legislature has placed upon its provisions, for the General Statutes of this State recognize the fact that the sustaining of a motion in arrest puts an end to the case, and it is therefore enacted by positive statute that the plaintiff, in certain cases, where a judgment in his favor is arrested, shall have one year thereafter within which to bring a new suit. R. S. 1899, sec 4285. (4) Where process is directed to the sheriff, the attempted execution thereof by a return signed "A. A. Lyle, D. S." is absolutely void both at common law and in Missouri, and such service does not bring the person in court who is named in the writ. 19 Ency. Pl. and Pr., 577, 581, 582, 584, 572-3; Murfree on Sheriffs, secs. 843 and 856; Harriman v. State, 1 Mo. 504; Atwood v. Reyburn, 5 Mo. 533; Breck v. Corby, 7 Mo.App. 300; Bennett v. Binyard, 34 Mo. 216; Russell v. Grant, 122 Mo. 161; Brown v. Langlois, 70 Mo. 226; State v. Huff, 161 Mo. 492; Eyerman v. Payne, 28 Mo.App. 79. (5) A complete defense to a foreign judgment is that the defendant therein never appeared to the action, and was not represented in the action, and was not summoned to appear by valid process. Napton v. Leaton, 71 Mo. 358; Bradley v. Welch, 100 Mo. 268; Cochran v. Thomas, 131 Mo. 279. (a) "Jurisdiction over a person can never be acquired, unless by a method which the law specifically provides, or by consent of the party himself. If the legal method has not been employed and the party does not consent, an assumption of jurisdiction by the court will be purely arbitrary." Huff v. Shepard, 58 Mo. 246.

Jamison & Thomas for respondents.

(1) The sustaining of a motion in arrest of judgment does not, under the practice in Missouri, operate as a dismissal of the case. State ex rel. v. Burns, 66 Mo. 227; State v. Koerner, 51 Mo. 174; Bowie v. Kansas City, 51 Mo. 454; Gilstrap v. Felts, 50 Mo. 428; Garesche v. Emerson, 31 Mo. 258; Erdbruegger v. Meier, 14 Mo.App. 256; 2 Ency. Pl. and Pr., pp. 821-2; Gleason v. Chester, 1 Day (Conn.) 27. (2) The sustaining of a motion in arrest of judgment did not at common law put an end to the case. (a) The nature, principle and history of motions in arrest of judgment. 3 Blackstone, Comm., 393; Gould's Pleading, pp. 459, 461-2 and 484; Witham v. Earl of Derby, 1 Welson (K. B.) 55. (b) Where the motion was sustained because of defect in pleading, a repleader was allowed. Gould's Pleading, p. 479. (c) Where motion was sustained because of defective verdict, a venire facias de novo was proper. 2 Tidd's Practice, 922; Gould's Pleading, p. 489. (3) Under modern common law practice, no formal venire facias de novo is necessary, in order for a case to come to trial again after arrest of judgment. Small v. Glidden, 1 Ala. 52; 10 Ency. Pl. and Pr., 360; R. S. 1899, sec. 681.

OPINION

In Banc.

Prohibition.

WOODSON J.

This is an original proceeding, instituted in this court, seeking to prohibit the respondent, as judge of the circuit court of the city of St. Louis, from taking and further exercising jurisdiction over the parties to and the subject-matter involved in the case of Sallie Bond against this relator, pending therein.

The petition filed in this court asking for the writ is in words and figures as follows (omitting caption and jurat):

"Now comes relator Henry W. Bond and states to the court, and gives it to understand, that on the 16th day of January, 1904, respondent Sallie Bond filed a suit against relator, upon an alleged foreign judgment purporting to have been rendered against him as one of the sureties on a guardian bond given in the State of Tennessee; that relator set up as his defenses to said suit by way of answer and cross-bill, the following:

"First. That he never appeared nor authorized anyone to appear for him in the litigation in Tennessee, wherein the alleged judgment was rendered.

"Second. That he was never served with process in said suit in Tennessee, and never authorized anyone to appear on his behalf therein.

"Third. That the alleged Tennessee judgment was fraudulently concocted and procured, in this, that the said suit in Tennessee purported to have been brought against relator and other persons as cosureties on the bond given by the guardian of respondent Sallie Bond, and that the other defendants in said suit, living in Tennessee, had set up defenses thereto which constituted a complete bar to any recovery.

"That respondent Sallie Bond, knowing all these defenses made by the resident sureties, after conducting the case in the Tennessee courts for over twenty years through her attorneys, finally dismissed it as to all of the solvent resident defendants and thereupon fraudulently induced the court to enter a fraudulent and unconscionable judgment against this defendant, who had never been served with process, who had never made any appearance either in person or by attorney, and who had been a non-resident of the State of Tennessee throughout the whole course of the litigation.

"Respondent states that upon these issues the suit finally came on to be tried before Judge D. G. Taylor, then presiding in Division No. 2 of the circuit court of the city of St. Louis, on the 21st day of June, 1907. That the plaintiff in said suit introduced in evidence an alleged transcript of the proceedings in the Tennessee court, which showed on its face that the alleged service of process in said Tennessee litigation was only executed and only signed in these words and figures, towit: 'A. A. Lyle, D. S.'

"In passing upon the three above-stated issues, the said trial court, after taking the case under advisement from the 21st day of June, 1907, to the 20th day of January, 1908 (being the December term, 1907, of said court), rendered its decision, finding on the first of the above issues in favor of relator, defendant in said suit, as appears by the following instruction given at the time.

"'The court finds as a fact that under the evidence adduced the defendant never appeared in the case in Tennessee and never authorized anyone to appear for him, and therefore the court finds the issues as to that branch of the case in favor of the defendant.'

"That the said trial judge made no finding whatever on the issues tendered by relator's cross-bill, but rendered verdict and judgment for the alleged face of said foreign judgment and interest.

"At the same term of said court the defendant duly filed his motions for a new trial and in arrest of judgment which two motions not being disposed of by the trial court at that time were continued over until the next term.

"At the second term after such judgment and decision, to-wit, the February term, 1908, of said court, plaintiff filed a motion for the correction of the aforesaid judgment by nunc pro tunc entry.

"Thereafter, to-wit, at the June term, 1908, of said court, and on the 22d day of June, the trial judge, by an order entered of record, overruled plaintiff's motion for a correction of the judgment nunc pro tunc, overruled defendant's motion for a new trial, and sustained defendant's motion in arrest of judgment, for the reason that the judgment was not responsive to the issues.

"Relator states that neither party to said suit took any appeal, or sued out any writ of error therein, or took any steps whatever to appeal from or review any of these orders of the trial court at the term at which they were entered, nor at any other term. Wherefore said orders were no longer subject to review under the law and practice of this State.

"Relator states that he had no subsequent knowledge of said case until about a year thereafter, when the trial docket of Division No. 2 of the circuit court of the city of St. Louis showed the entry thereon of said cause, and that it was set for trial for the 5th day of October, 1909.

"Relator immediately filed his motion in said Division No. 2 of said circuit court for the discontinuance and striking of said cause from the docket of said court. Said petition being in words and figures as follows:" (Then follows a substantial recital of the foregoing facts.)

Said motion ended with the following language:

"Wherefore this defendant states that when said judgment was arrested and for naught held by the order of this court entered at the June term, 1908, without any new trial being granted, the effect of such order was to put an end to the case, and that the cause is no longer pending in this court and should be dismissed and stricken...