Weaver v. Woodling
| Decision Date | 25 May 1925 |
| Citation | 272 S.W. 373,220 Mo.App. 970 |
| Parties | F. M. WEAVER, RESPONDENT, v. MINER D. WOODLING, APPELLANT |
| Court | Kansas Court of Appeals |
Appeal from the Circuit Court of Jackson County.--Hon. James H Austin, Judge.
REVERSED.
Judgment reversed.
S. C Jacobsen for respondent.
Clyde Taylor for appellant.
This is an appeal by special order of this court granted to defendant under the provisions of section 1474, Revised Statutes, 1919, from a default judgment against him in the circuit court of Jackson county, Mo., in the sum of $ 1749.45, in favor of plaintiff.
The question presented arises on the face of the record proper. It is contended by defendant that at the time said judgment was entered the suit had been discontinued; the process was void, defendant was not in court; that the court was without jurisdiction and that the judgment therefore was a nullity.
The record discloses that plaintiff is a certified public accountant and that defendant, Miner D. Woodling, was doing business as Miner D. Woodling Heating & Ventilating Company. The petition was filed July 28, 1922, returnable to the September (1922) term of the Jackson County Circuit Court, and charges that defendant is indebted to plaintiff in the sum of $ 1755 for professional services as per an itemized statement thereto attached, as an exhibit. Upon the petition so filed a summons was issued and returned non est. No alias and pluries summons was issued during the September (1922) term of the court.
On January 3, 1923, being the November term, an alias summons was issued returnable to the March term, and return was made thereon January 4, 1923. No court entry appears of record until September 18, 1923, when judgment by default was entered, defendant not being present or represented by counsel. At the May term (1924) of the court defendant filed his motion to set aside said default judgment, alleging as grounds therefor that defendant had not been served and the court was without jurisdiction of the person of the defendant because (a) the return of the sheriff is void on its face; (b) the alias summons was improperly issued, not being issued at the term of the court to which the original writ was returnable; (c) because plaintiff permitted a chasm in the proceedings to occur by failure to continue the process regularly from term to term until service was had, thereby discontinuing his cause of action, and (d) that there was no cause of action pending at the time said default judgment was rendered; and (e) because said alias summons was void since it was not issued pursuant to any order of the court or other lawful authority.
On August 2, 1924, the court made and entered of record an order overruling said motion to set aside the default judgment; to which ruling defendant duly excepted. On August 11, 1924, this court by special order duly allowed defendant an appeal to this court, of which order plaintiff had due and timely notice.
The question decisive of all the issues raised in this appeal is whether or not the failure of plaintiff to sue out successive writs from term to term worked a discontinuance of the case by operation of law, thus rendering the judgment void. There is no dispute as to the facts.
The first point for consideration is whether the failure of plaintiff to renew his summons from term to term works a discontinuance of his case. It is the general rule that process must be regularly continued from term to term and [20 Encyc. of Pl. & Pr. 1078.]
It should be remembered that the original summons was issued returnable to the September (1922) term, and was returned non est. No effort was made by plaintiff to test an alias during that term. In the meantime the November term intervened, thus constituting a chasm or hiatus in the process and at the succeeding term, to-wit, the November (1922) term, plaintiff asked an alias summons which was issued returnable to the March term, 1923. We think the failure of plaintiff to seek an alias summons during the original return term operated as a discontinuance of his case. Many cases are found in other jurisdictions holding to this effect. In Bank v. Hall, 6 W.Va. 447, 450, it is held:
"In practice the chasm or interruption in the proceedings occasioned by the failure of plaintiff to continue the suit regularly from time to time as he ought is a discontinuance." [See, also, Penniman v. Daniel, 91 N.C. 431.]
The reason for the rule is obvious. A plaintiff, after filing his petition, might wait indefinitely and then bring the defendant into court pursuant to an alias summons after his witnesses...
To continue reading
Request your trial
-
Alexander v. Haffner
...Ins. Co. v. Francis, 52 Miss. 457, 467; Parsons v. Hill, 15 App. Cas. (D. C.) 532; 9 R. C. L. sec. 2, pp. 191-2.] The ruling in Weaver v. Woodling, supra, was disapproved Ferber v. Brueckl, 322 Mo. 892, 17 S.W.2d 524. The judgment of the trial court is reversed and the cause remanded with d......
-
McGrew v. Carr
... ... property in question. However, following the decision of this ... court in the case of Weaver v. Woodling, 220 Mo.App ... 970, 272 S.W. 373, it held the failure of the Commerce Trust ... Company to sue out an alias writ each term after the ... ...
- Riley v. Citizens Bank of Windsor