9 Mo. 638 | Mo. | 1845
delivered the opinion of the court.
On the 19th Januiry, 1844, B. B. Dayton makes affidavit setting forth that on the 17th January, 1844, Squire Brown commenced suit, by consent, against Charles R. Anderson for his freedom in the St. Louis circuit court, and that an order was made by said court permitting said Brown to sue as a poor person, and that said Dayton be assigned as his counsel; that said Brown have reasonable liberty to see his counsel and attend the court, and that, he be not removed out of the jurisdiction of said court, nor be subjected to any severity on account of his suit;— that the defendant appeared by his attorney, consented to the tiling of the declaration and the order made in the cause, and filed a plea to the declaration, on the said 17th January, 1844. The affiant further sets forth that he is informed by John Paulding, a constable, that he said Paulding, at the request of said Anderson, on the said 19th January, arrested said Brown, and took him to the steamboat Admiral, for the purpose, as said Anderson told him, of sending said Brown south, and that said Brown was put on said boat, which was bound for New Orleans, and which with said Brown has departed for that place; and said Dayton believes, therefore., that said Brown is now about being removed out of the jurisdiction of this court.
Thereupon the judge of the circuit court issued a writ to the sheriff of St. Louis county, in which it is recited that he is satisfied by the foregoing affidavit that said Brown is about to be removed, &c., and commanding said sheriff to seize said Brown and bring him before the judge on the 20th January instant, at 9 o’clock, A. M., at the county jail, and that he summon to appear, at the same time and place, any person claiming or having in possession said Brown.
On the 12th February, 1844, Anderson filed his motion to set aside said judgment as against him, because the same is illegal, having been rendered without authority in law ; which motion was overruled. On the 29th of-said month Anderson filed another motion to set aside the decision of the former motion, which was also overruled, to which decision of the court the said Anderson excepted, and has brought the case here by appeal.
The appellants counsel insist that the writ was illegally issued, because issued on hearsay testimony alone, and refers to 10 Wend. Rep. 420, where it is held that affidavits of a plaintiff that from reports and information he believed that his debtor kept out of the county to avoid paying his debts; and of his loitnesses that they had been informed that he had departed, and, as Ms creditors said, for the purpose of defrauding them, are not sufficient to authorize the issuing of an attachment by a justice. By the statute of New York, under which the foregoing proceedings were had, the justice before he is authorized to issue an attachment, is required to have satisfactory proof by at least one disinterested witness, &c. In the case referred to in 11 John. R. 175, the court construe the words satisfactory proof to mean legal evidence, or such as would be received in the ordinary course of judicial proceedings.
Our statute under which the judge proceeded in this case, differs somewhat from the New York statute. Ours provides, R. C. sec. 4. p. 285, that if the court or judge is satisfied that the petitioner is about to be removed out of the jurisdiction of the court, he shall cause the petitioner to be brought up by a warrant under the seal of the court or the hand of the judge. There is certainly a material distinction between the two statutes in this. Under our statute it would be entirely competent for the court or the judge to issue a warrant upon his
It is contended that the judgment against Anderson at least was illegal, because he was not summoned under the writ, and had no day in court or other opportunity to defend himself. We are at a loss to ascertain how the proceeding before'the judge at his chamber found its ,vay into the circuit court, and became engrafted on the action between the parties in the freedom cause. . The writ issued by the judge accomplished its office, when the sheriff made his return on it, and the only reason for summoning the person who had the petitioner in custody, was to afford him an opportnnity of showing his right to such posses-don, and not to answer any further proceedings which it might become ¡necessary to take against him. If the acts of the party in possession amounted to a contempt of. the court, or a violation of any of its orders, and for which the party was liable, the court should have in- : tituted proceedings in term time, and caused the party offending to appear in court, and show cause why he should, not be adjudged guilty f such contempt and punished accordingly. But if, as the counsel con-end, the proceedings against Morris be regular and valid, still as Anderson was not summoned, and for anything appearing to the contrary .n the record, had no notice whatever, and may not, in point of fact, have done any act which ought to have subjected him to the payment of costs, it is difficult to conceive upon what grounds the judgment was rendered against him. It is error to enter judgment against a party who has not been served with process, and does not answer to the action; 7 Mo. Rep. 1. It is a principle of universal law, that a judgment rendered against a party who had no notice of the proceedings is utterly void; 7 Mo. Rep. 463.
The circuit eourt may have proceeded against Anderson, because he was a party to the suit, and had entered his appearance in the cause, ,nd might ther*fore be considered as in court. But we cannot recog.ize the correctness of the principle, that when an individual is in ourt for one purpose, he may be considered in court for any other, or or all purposes. But if it could be so regarded by the court in refer
For the foregoing reasons, the judgment of the circuit court ought to be reversed, and the other Judges concurring the same is reversed.
