Higgins v. Peltzer, 49 Mo. 152

Higgins v. Peltzer

49 Mo. 152 | Mo. | 1871

Wagner, Judge,

delivered the opinion of the court.

The only question presented by the record in this case is whether the judgment rendered in the St. Louis Law Commissioners’ Court was merely voidable or absolutely void. If only voidable, it cannot be impeached collaterally, and it must stand and the rights acquired thereunder 'be protected till proper proceedings be had setting it aside, vacating it, or reversing it for error; for it is a familiar principle that the judgment or decree of a court of competent jurisdiction cannot be reversed or inquired into in a collateral proceeding, except for fraud. Nor, standing on the public records, can it be deemed a nullity, provided the magistrate had jurisdiction of the matter adjudicated. But where there is no authority in a court to act, and its proceedings are coram non judice, then they are null and void; and in the case of judgments rendered thereon, no title passes by virtue of the execution. And where a judgment is void, advantage may be taken of it collaterally. (Fithian v. Monks, 43 Mo. 502, and cases cited.)

The action was ejectment brought by the respondent against the appellant, and there was a common source of title. Appellant’s title rested on a purchase made upon an execution sale by the marshal of St. Louis county, which execution was issued upon a judgment rendered in the Law Commissioners’ Court against *156the respondent and her then husband. The property in controversy, at the time and before the judgment .was rendered, belonged to the respondent by virtue of a conveyance executed to her while sole. A.t the time of the institution of the suit, respondent and her husband were non-residents. The property was attached, service was had by publication, judgment was obtained against her and her husband, a special execution was awarded, and the property was sold and bid in by the appellant. The petition upon which the judgment was so rendered set out that the respondent and her husband, as husband and wife, were indebted to the plaintiff therein in a certain sum for moneys paid out and expended at their instance and request, the same being for necessaries furnished certain children therein named.

The Circuit Court gave judgment for the respondent, holding that the judgment, as against her, was utterly void, and that the marshal’s deed introduced in evidence was insufficient-to support the title in the appellant. The promise and undertaking made by the respondent while she was a married woman was, as a contract, entirely void, and she cottld not be held personally liable therefor. This point was expressly adjudged by this court in Bauer et ux. v. Bauer, 40 Mo. 61.

Whether the wife is capable of being sued at law, so that jurisdiction is acquired and the judgment is simply voidable or reversible for error, is another question. The best considered cases hold that she has no capacity to be proceeded against at law, and that a judgment rendered against her is void.

In Caldwell v. Walters, 18 Penn. St. 79, it is decided that a bond and warrant of attorney to confess judgment by a married woman and her husband is void as to her, and a sale of real estate upon such judgment, and the purchase of it during coverture by the plaintiff in the judgment and execution, did not divest the title. In the case just cited, th# husband and wife joined in giving bond with a confession of judgment by attorney, in pursuance of an alleged warrant of the date of the bond. On this judgment an execution was issued and 'a levy made on the wife’s property, and it was sold, and the court said that the bond and *157warrant of Mrs. Walters being executed by a feme covert were not merely voidable, but absolutely void.

In Dorrance v. Scott, 3 Whart. 313, Kennedy, J., said that a judgment entered against a wife by virtue of a bond and warrant, of attorney, executed by her as a married woman, is to be deemed, according to all the authorities on the subject, void as against her for want of authority to enter it, and consequently could be no lien on her real estate as such. In the same case the court ruled that a judgment so entered was so destitute of validity that a judgment had in the same court, on a scire facias founded on such judgment, was to be considered void as against the wife, having nothing to support it.

In the case of Morse v. Tappan, 3 Gray, 411, a judgment against a married woman was, upon an agreed statement of facts admitting such fact of marriage, held absolutely void, and the objection was allowed without any writ of error or reversal of the judgment.

In Watkins v. Abrahams et ux., 24 N. Y. 72, the court held that a confession of judgment without action by a married woman was void, although the consideration was mone'y borrowed for and applied to the improvement of her separate estate; and it was further declared that when husband and wife unite in confessing judgment, it may be retained as good against the husband, though void as to the wife. So in Griffith v. Clark, 18 Md. 463, it is held that a promissory note signed by a feme covert can not be enforced against her by any proceeding at law, and that a judgment by default against her, when sued at law on such a note, is a nullity.

It is very clear to my mind that the respondent was not competent to employ an attorney or make a defense in her own name. She was sued in a legal proceeding upon a personal contract altogether void at law; and shall the entry of an unauthorized judgment against her by default for non-appearance be allowed to prejudice her ? The principle that a party cannot impeach a judgment in a collateral proceeding does not apply to a case Where the defendant is a feme covert and not sui juris. As the respondent labored under a total disability and could neither *158contract nor be sued at law, I think the judgment o£ the Law Commissioners’ Court was void.

It follows, therefore, that the judgment of the Circuit Court must be. affirmed.

The other judges concur.