Vorhauer v. Sweeney

• Decision Date: 15 February 1949
• Docket Number: 27505
• Citation: 217 S.W.2d 985
• Parties: VORHAUER et al. v. SWEENEY et al
• Court: Missouri Court of Appeals

217 S.W.2d 985

VORHAUER et al. v. SWEENEY et al

No. 27505

Court of Appeals of Missouri, St. Louis

February 15, 1949

'Not to be reported in State Reports.

J. B Mackler and James R. Anderson, both of St. Louis, for appellant.

Michael J. Doherty, of St. Louis, for respondents.

OPINION

This action in unlawful detainer originated in the magistrate court of the City of St. Louis, where judgment was rendered in favor of the defendants, and plaintiffs appealed to the circuit court. On January 5, 1948, a stipulation for judgment signed by the respective attorneys for plaintiffs and defendants, and by Charles Vorhauer one of the plaintiffs, and Edward Sweeney, one of the defendants, was filed, which is in words and figures as follows:

'Judgment by consent for restitution of premises and rents at rate of $ 15.00 per month from July 30, 1947 until restitution of premises. Execution stayed until February 5, 1948 conditioned upon payment of rent, costs to be paid by plaintiffs upon condition defendants restore premises February 5, 1948.'

Judgment was thereupon rendered in accordance with the stipulation. Thereafter, on February 9, 1948, at plaintiffs' direction, an execution was issued by the circuit clerk, seeking the enforcement of the judgment. On February 12, 1948, Edna Sweeney, one of the defendants, filed a motion to quash the execution, for the alleged reasons, (a) that she did not sign the stipulation for judgment, and did not authorize her attorney to do so, and (b) that the affidavit to the unlawful detainer complaint was fatally defective for reasons hereinafter stated.

On February 20, 1948, a hearing on the motion to quash the execution was had, and Edna Sweeney offered to testify that she had not signed the stipulation for judgment, and had not authorized her attorney to do so. Plaintiffs' counsel objected to the offer of testimony for the reasons, first, that defendant Edna Sweeney was bound by the entry of her name on said stipulation by her then attorney, even though she had not signed the same herself, and, second, that the motion to quash the execution is a collateral attack on the judgment. This objection was sustained. Defendant Edna Sweeney then offered to prove by her own testimony, and by the testimony of three other witnesses, that she had not only refused to sign the stipulation for judgment when requested to do so by her attorney, but that she directed her attorney not to sign the same, and that her attorney, in spite of her directions to the contrary, signed her name to the stipulation. Plaintiffs' objection for the same reasons as above indicated were sustained, and the motion to quash the execution was overruled. From that order defendant Edna Sweeney appeals to this court.

Defendant-appellant contends that the judgment is void ab initio because the affidavit to the unlawful detainer complaint is defective. That complaint is signed as follows: 'Charles Vorhauer and Mary E. Scilligo, by Charles Vorhauer Plaintiff and Agent for Mary E. Scilligo, Plaintiff.' Then follows the jurat: 'Charles Vorhauer, plaintiff being first duly sworn, upon his oath says that the statements in the foregoing complaint are true.' This is signed and sworn to by Charles Vorhauer.

We think there was a sufficient verification of the complaint under Section 2836, R.S.Mo.1939, Mo.R.S.A. § 2836, as amended, Laws 1945, p. 1089, which requires the complaint to be in writing, 'signed by the party aggrieved, his agent or attorney, and sworn to,' etc. The only object of the statute, in requiring a verification of the complaint, is to make a prima facie showing by the oath of one cognizant of the facts, so as to prevent the abuse of this summary writ. Bobb v. Taylor, 25 Mo.App. 583. But even if we concede the verification to be irregular or imperfect, the defendant cannot now be heard to complain because she failed to make any such objection in the lower court. Naylor v. Chinn, 82 Mo.App. 160. This is not like a complaint which has no verification, and is, therefore, insufficient to confer jurisdiction. It is verified by one of the parties as plaintiff, and who describes himself in his signature to the complaint as agent for the co-plaintiff. It would be a strained construction of the statute to say that it requires verification by all who are plaintiffs. We think a verification by one of two co-plaintiffs is a compliance with the statute.

It is the well settled law, as appellant contends, that an attorney cannot bind his client by any unauthorized act which amounts to a total or partial surrender of a substantial right. It has been so held in many cases, and in a fairly recent case by this court. Sudekum v. Fasnacht's Estate, 236 Mo.App. 455, 157 S.W.2d 264. Also see Krug v. Roberts Cone Mfg. Co., 213 Mo.App. 628, 250 S.W. 621, loc. cit. 625.

However, it is also the settled law that a judgment of a court of competent jurisdiction imports absolute verity and cannot be questioned in a...