Barnett v. Barnett

230 S.W. 837 | Mo. Ct. App. | 1921

This is an appeal from an order overruling a motion to quash an execution. Plaintiff and defendant were divorced in 1913. There were four children born of the marriage and their custody was awarded to plaintiff, and she was allowed $3000 alimony in gross. On June 11, 1919, plaintiff filed a suit against defendant to recover what she had paid out of her own funds for the support and maintenance of the children. Judgment went by default, execution issued, the sheriff levied upon defendant's lands, and motion was filed to quash the execution. The ground of the motion is that there was no valid service on defendant. By the parol of evidence admitted it appears that the sheriff delivered to defendant a copy of a petition and summons which purported to be in the present case, and a copy of a summons which purported to be in the original divorce case. Plaintiff was seeking to have that case opened up and the future support of the children provided for in that case. But the present case is all that is concerned here. The copy of the summons was not signed by the clerk, and the seal of the court was not on it. It was no more than what is comonly called a blank summons, except the style of the present case was filled in on a typewriter, and dated in the same manner. The clerk testified that the typewriting on the paper called a summons looked like the writing of his typewriter. The copy of the petition was not attached to anything. These three papers, unsigned and uncertified were handed defendant by the sheriff at one and the same time. The sheriff made his return on the original summons which was properly signed and sealed, showing proper and valid service. Defendant took the three papers delivered to him by the sheriff and sought the advice of a lawyer. He was advised that the service was bad, and that there was "nothing to it." He made no appearance, and judgment went by default as stated.

There is but one proposition briefed by appellant and that is the validity of the judgment under the facts stated. The question is, can defendant go behind the return showing valid service and impeach that return on a motion to quash the execution? In Smoot v. Judd, 184 Mo. 508, 83 S.W. 481, the principle involved here is most thoroughly and elaborately considered and the rule in Missouri announced to be that the officer's return is conclusive upon the parties to the suit, and that a judgment by default in pursuance of the return cannot be attacked even in equity except where the judgment plaintiff aided or abetted in making the false return. This subject is so completely considered in the Judd case that we shall not undertake to discuss the law here. In Reiger v. Mullins, 210 Mo. 563, 109 S.W. 26, it was urged that the law as written in the Judd case was not in line with the weight of authority, and that that case should be overruled, but this the court declined to do. In Newcomb v. Railroad, 182 Mo. 687, 81 S.W. 1069, the syllabi gives the substance of the holding thus: "The statements in the return of the sheriff, showing service of the summons on the agent of defendant, are, for the purposes of the suit, conclusive on the parties to it. The court should ignore affidavits contradicting the statements in that return, to the effect that the persons therein recited to be agents of defendant were in fact not such." It clearly appears from the authorities that defendant in the case at bar cannot redress his wrong in this proceeding. It is stated in the Judd case that the truth of the facts stated in the return can be controverted only in a direct proceeding against the sheriff for false return.

Defendant in his oral argument challenged the sufficiency of the petition, and urged that it states no cause of action, and therefore will not support the judgment, and that the execution should be quashed for that reason. In view of defendant's situation we have given this feature due consideration and find no reason to uphold this contention. The petition may not be in the best form, but sufficient allegations are contained to render it immune from attack after verdict and judgment. Defendant does not challenge the petition in his brief, and we have only considered this feature in deference to the situation.

The judgment below should be affirmed, and it is so ordered.Cox, P.J., and Farrington, J., concur.