73 Mo. App. 293 | Mo. Ct. App. | 1898
This proceeding was' instituted in the circuit court of Pike county, January 25, 1892, wherein William Beshears and Jessie C. McGrew, executors of the estate of Robert A. Beshears, were plaintiffs, and Joseph W. Dowell and Nathaniel Dowell were defendants. It was a suit by attachment on several promissory notes, aggregating the sum of $2,129.28. On the same day affidavit for attachment was filed, bond given, and writ of attachment issued to the sheriff of Pike county against Joseph W. Dowell,
At the said.term, March term of the court, and on the seventeenth day of March, 1892, by order of the court, this cause was continued, and on the next day this order of continuance was set aside and an order of publication to Joseph W. Dowell was applied for and obtained, and on the same day defendant Nathaniel Dowell, having been duly summoned, and having failed to appear and answer or demur to plaintiff’s petition, the court'rendered judgment by default against him in favor of plaintiffs for the amount of the notes, $2,251.77. Prior to the rendition of this judgment, however, on the twenty-sixth day of February, 1892, the plaintiffs caused to be issued from the office of the circuit clerk of Pike county, an attachment writ and summons to the sheriff of Audrain county against Joseph W. Dowell, returnable to the September term of the court, and under this writ the sheriff of Audrain county attached in the hands of the Vandalia Banking Association, a corporation, all money belonging to or owing to said Joseph W. Dowell, being about $340, and summoned said banking association as garnishee in this cause, and made due return thereof.
On September 19,1892, proof of publication of the notice by publication to Joseph Dowell was filed, and afterward and at the September term, 1892, of the circuit court of Pike county, the court finds that defendant Joseph W. Dowell .has been duly served with process as the law directs, and having failed to appear and answer or demur to plaintiff’s petition, the same is taken as confessed, and the cause coming on to be heard, and after hearing of the evidence it is ordered by the court that plaintiff’s attachment in this cause be sustained and the court renders judgment in favor of the plaintiffs in this cause against defendant Joseph W. Dowell, for the amount of the notes and interest due, at that time, $2,251.77.
At the March term, 1893, of the Pike county court, and on the tenth day of March, 1893, the garnishment proceedings in this cause being undisposed of and still pending, a change of venue was taken to the circuit court of Audrain county, when the cause was regularly continued until the January term, 1897, of said court, and at which term, and on the eighteenth day of January, 1897, the Vandalia Banking Association, garnishee, filed a motion to dismiss the garnishment in this cause against the said garnishee, for the reason that the court has not acquired any jurisdiction overthis garnishee nor over any funds in its hands belonging to defendant Joseph W. Dowell, or owing to him by said garnishee, and introduced in evidence in support of said motion all the record and papers in this cause.
On the same day plaintiffs filed their motion for a new trial, which was overruled, and plaintiffs perfected their appeal to this court.
The judgment rendered at the March term, 1892, of the Pike county circuit court against Nathaniel Dowell, was a full, complete and final judgment as to him. The contention of respondent is that the rendition of this . * . . judgment was a final disposition of the case and operated as a dismissal of the suit as to Joseph Dowell, who up to that time had not been served with process. We are inclined to support this contention.
Section 2213, Revised Statutes 1889, provides: “When there are several defendants in suit, and some of them appear and plead and others make default, an interlocutory judgment by default may be entered against such as make default, and the cause may proceed against the others; but only one final judgment shall be given in the actionUnder this section appellant, at the March term, 1892, of the Pike county circuit court, if he wished to continue the prosecution of his case against Joseph Dowell, should have taken an interlocutory judgment against Nathaniel and continued his ease for service on Joseph Dowell. Instead of doing this he took a final judgment against Nathaniel; by this action he debarred himself of the right to have another judgment in the same suit against Joseph Dowell; and the court, after the rendition of the final judgment, deprived itself of power to proceed to make any further adjudication in the case without first setting aside the final judgment against Nathaniel Dowell. In our view the latter clause of section 2213, supra,
The fact that the cause was continued as to Joseph Dowell and alias process was awarded to bring him and his property before the court- at the same term the judgment against Nathaniel was rendered, did not have the effect to preserve the power of the court over the cause or to give it jurisdiction to proceed against Joseph Dowell to final judgment. When the court adjourned for the term, leaving the judgment against Nathaniel Dowell in full force and effect, its jurisdiction to render any other or further judgment in that cause was gone, and what was done thereafter was coram nonjudice and void.
Judgment affirmed.
