110 Mo. App. 174 | Mo. Ct. App. | 1905
— This suit was instituted by plaintiff On an account against defendant before a justice of the peace in Trenton township. On defendant’s application a change of venue was granted and the cause sent to W. TI. McGrath, a justice in the same township. Thereupon, plaintiff applied also for a change of venue and the cause wás sent to J. B. Embry, a justice of the peace in Jefferson township, who issued a notice directed to defendant notifying her of the change in time and place of trial, etc. This notice was served upon W. G. Callison, defendant’s attorney, as shown by the return of the officer. On the day named for the trial, defendant did not appear and judgment was taken against her by default. The plaintiff on the 25th of February, 1902, filed a transcript of her judgment before said Embry in the office of the clerk of the circuit court of the county upon which an execution was duly issued. Whereupon, defendant filed her petition in vacation with the circuit judge of the county setting up the foregoing facts and asking that the said judgment be stayed. The judge granted the order. When the case came before the court in session the order staying the execution was vacated and the motion
The contention of defendant is that Justice Embry had no jurisdiction to render said judgment because the law required that the said notice be served on the defendant and not her attorney. Section 3974, Revised Statutes 1899, provides that a justice to whom a, cause is sent shall set the same for trial and. cause the parties to be notified thereof in writing, which notice shall be served on the parties not less than five nor more than fifteen days before the day fixed for such trial. The notice may be served in like manner as an original writ or summons.
There is no question but what the notice was not served in the manner directed by the statute; and until the statute in that respect was complied with, or such notice was waived, any judgment rendered by the justice was premature. But it was not void. The court-had jurisdiction of the subject-matter of the suit and of the parties. "When the court has jurisdiction of the parties and the subject-matter its judgment is not open to collateral attack, even though rendered prematurely. [Reed Bros. v. Nicholson, 158 Mo. 624.] “It is a well-established principle that a judgment regular on its face can not be impeached collaterally, and this rule applies to judgments rendered by justices of the peace.” [Livingston v. Allen, 83 Mo. App. 294.]
The lay is too well settled for controversy.
