112 Mo. App. 147 | Mo. Ct. App. | 1905
The petition in this case is in the nature of a bill in equity for the purpose of procuring an injunction against an execution issued on a judgment rendered by a justice of the peace. The Goldie and Rich Construction Companies are both Missouri business cor
“In Justice Court, before F. A. Cline, a justice of the peace.
Rich Construction Company, a corporation, v. William Goldie Sons Company, a corporation, H. P. Lee, Hill-O’Meara Construction Company, a corporation.
*151 “Gome now the defendants by their attorneys, and stipulate that judgment may be entered for the sum of sixty ($60) dollar’s and costs against William Goldie Sons Company, a corporation, and that said defendants, H. P. Lee and Hill-O’Meara Construction Company be dismissed from this cause, to which plaintiff, by his attorney, consents.
“May 13, 1902.
“Taylor R. Young,
“Attorney for defendants, Goldie Sons Company and H. P. Lee.
Collins & Chappell,
“Attorneys for Hill-O’Meara Construction Company, Rich Construction Company, by Jacob Oppenheimer, its attorney.”
On the same day a second stipulation was filed, which reads:
“Rich Construction Company, plaintiff, v. Goldie Construction Company et aL., defendants.
“Before F. A. Cline, justice of the peace within and for the ninth district, city of St. Louis, Missouri.
“Comes now the defendant, Goldie Construction Company, a corporation, one of the defendants in the above-entitled cause, by its attorney of record, 'and stipulates that judgment may be had against it and in favor of the above-named plaintiff, for the sum of sixty dollars ($60) and all costs to which the plaintiff hereby consents, and agrees that the other named defendants in said action may be dismissed with their costs.
“Dated May 13, 1902.
“By Goldie Construction Company.
“Taylor R. Young, its attorney. “Rich Construction Company.
“By Jacob Oppenheimer, its attorney.
Pursuant to the last stipulation Justice Cline entered judgment against the Goldie Construction Company for $60 and costs of suit and issued as execution,
On the trial in the circuit court the injunction was made perpetual. The petition contained the substance of the facts which appear in the above statement, with allegations that neither Wm. Goldie & Sons Company nor the Goldie Construction Company was ever served with process; that H. P. Lee assumed to act for said defendants. without any authority whatever, as did also the attorney, Taylor R. Young; that Lee had no connection with either the Wm. Goldie & Sons Company or the Goldie Construction Company and was not in their employ or service; that he filed, the affidavit for change of venue from Justice Walker on behalf of Wm. Goldie & Sons Company on his own motion and without authority ; that the two stipulations signed by Taylor R. Young, the first authorizing judgment against Wm. Goldie & Sons Company, the second against the Goldie Construction Company, were signed without authority, said Young never having been employed as attorney for either of said .companies; that the Rich Construction Company, Taylor R. Young, H. P. Lee and the Hill-O’M'eara Construction Company entered into a corrupt, unlawful and fraudulent combination to defraud the Goldie Construction Company by filing said stipulations; that the account for $85 filed by the Rich Construction Company with Justice Walker, was based on a transaction that took place between said Rich Construction Company and H. P. Lee, to which transaction the Goldie Construction Company was an entire stranger, and in no way responsible for any obligation growing out of it; that the Goldie Construction Company has a good defense on the merits of the action on said account. The prayer was that the Rich Construction Company and Charles E. Mohrstadt, constable, be enjoined from enforcing said execution by levy. The pe
The ansAver made some formal admissions and denied every other allegation of the petition.
The Goldie Construction Company had, as we gather, the construction of the Electricity Building at the World’s Fair grounds, in the city of St. Louis. The testimony is not definite as to the nature of the contract, but it is certain that company had an important contract in connection with the building — we suppose the contract to erect it. At any rate, it appears the Goldie Construction Company sublet to H. P. Lee the driving of the piles for'the building. Lee became indebted to the Rich Construction Company for seventeen piles Avhich were the subject-matter of the action brought before the justice of the peace. The testimony goes to show that Lee was an independent subcontractor, and neither an officer of nor in the service of the Goldie Construction Company. Just what connection the Hill-O’Meara Construction Company had Avith the transaction is not explained. The attorney, Mr. Taylor R. Young, appeared in the cause before the justice of the peace at the instance of and under employment by the defendant, H. P. Lee, who seems to have engaged the services of the attorney in behalf of the Goldie Construction Company, as well as his own. Lee assumed to act for the Goldie Construction Company, but there is strong evidence that he had no' such authority and that the officers of said company kneAV nothing of the action before the justice until they were notified by letter from Young that judgment had been entered against it. HoAvever, Young testified to a telephone conversation during the progress of the case before one of the justices with a man who answered a call for Wm. Goldie, Jr., president of the Construction Company. Goldie denied' having such a conversation and said he had never heard of it until the trial of the present suit. It is conceded that no service Avas obtained on any
The principal contention of the appellant is that though the respondent was neither served with process,nor its appearance entered by any one possessing authority, the effect of those facts is to render the judgment entered by the justice void and cut off relief by injunction. In other words, the contention is that the judgment was void and can result in no harm to the respondent, and, hence, equity will not interfere with it. The flaw in this argument is that the judgment against the respondent before the justice of the peace
We are cited to the case of St. Louis, etc., R. R. v. Lowder, 138 Mo. 533, as establishing the rule that a void judgment before a justice will not be enjoined. But the judgment dealt with in that case was void on the face of the proceedings for lack of service. The court which gave the judgment had no jurisdiction, real or apparent, of the defendant. The present respondent is in a very different situation; for, as said above, an appar
But the appellants say no showing was made of a good defense on the merits to the action on the account filed before the justice of the peace, and that, even though a judgment goes against a party on an appearance entered by an attorney without authority, this judgment will not be relieved against in equity unless the complaining party shows a defense to the merits of the cause in which the judgment was given. There is a contrariety of opinion regarding whether such a showing must be made where there is no service and no appearance by one having authority to represent the litigant. Perhaps the weight of d'ecision is in favor of the proposition that it must appear that the complaining party is aggrieved; that he had a defense to the merits. This rule is recognized in Missouri. In Sauer v. Kansas City, 69 Mo. 46, certain Iowa cases are cited which go far in exacting as a condition of equitable relief, proof of a defense on the merits. The authorities are rather indefinite as to just what showing in regard to the merits must be made by a party against whom judgment has gone without notice, in order to obtain relief. In the present case, as in most others of like nature, the Goldie Construction Company would have been entitled to a trial by jury on the issue of whether it owed the account sued on by the Rich Construction Company. It was deprived of that right by the course the action on the account took, without being in the least to blame. Now, the question is, must a party who has been thus aggrieved try the merits of the original case as fully before a chancellor, when seeking relief against an unauthorized judgment, as would have been necessary in the original action, if. it had been served with notice? That looks like an extreme and unjust doctrine. In the present case the petition avers a meritorious defense to the action on the account. Moreover, it appears from the testimony addficed on the trial, that H. P. Lee
We affirm the decision of the circuit court.