Huff v. ShepardHuff v. Shepard
- Reporters:
- Before:
- Lewis
delivered the opinion of the court.
Suit was instituted to compel specific performance of a written agreement. A summons was issued which was not expressed to run in the name of the Statе of- Mo., and after-wards another was issued in proper form. Both were served on the defendant in St. Louis county, where he resided.’ At the return term, defendant, appearing only for that purpose, and “not intending to confer jurisdiction of his person,” moved to quash both writs, because they were issued and attested by the-plaintiff himself as clerk of the Circuit Court, and the second one for the additional reason that the first had been served. These motions were ovеrruled.
*245On the first day of the term, plaintiff filed an amended petition, which more particularly described the property, which was the subject matter of the agreement. On the sixth day of the term, plaintiff filed a second amended petition asking for additional relief in the enforcement of a vendor’s lien on thе property. On the next day, he took an interlocutory judgment by default, and two days afterwards this was ripened into a final decree against defendant, in аccordance with the prayer of the petition. Defendant’s motion in arrest of judgment was overruled.
The points of practice appearing herein demand some attention before we proeeed to the substantial merits of the ■controversy. Defendant’s objections against the vаlidity of the second summons were not well taken. The first, being unquestionably void, could not affect the second, which was •therefore the only original proсess in the suit. There is no controlling reason why a clerk should not issue process in his own behalf,- as plaintiff. The statutory provision (Wagn. Stat., 421, § 18) for a substitute in certаin cases, applies only to the officers who execute process. An interested sheriff, by making a false return, might subject a defendant to judgment without notice in fact of the proceedings. Or, if biased in a different direction, he could deprive a plaintiff of his rights by omitting service at the proper time. But no such dangers attend the mere issuance of the writ. The document speaks for itself, and‘if served by the proper officer ■can accomplish nеither more nor less, whether issued by the clerk or a temporary substitute. The legislature would seem to have recognized these truths, in its omission of clerical officers from the general provisions.
The Circuit Court never acquired any jurisdiction over the person of the defendant, which‘could authorize either the interlocutory or the final judgment. The suit, as originally brought, was not for the possession of real estate, or to affect any title thereto. There wаs but one defendant, and he was served in another county.. He was not before‘the court for any purpose,- except that which he chose tо .announce in his *246motion to quash the writ. It appears, however, that two efforts were made to subject him to judicial authority. One was by force of a “ rulе of court,” to the following effect:
“Application to the court to raise any jurisdictional question, shall be deemed an appearance, and no further process shall be necessary to bring the party into court. But if the process to which objection is taken be defective, the рarty so applying may have a continuance, or time to answer, as to the court may seem just and equitable.”
Unless it can be shown that the court had a legislative authority, this “ rule ” was void. Jurisdiction over a person can never be acquired, unless- by a method which the law specifically provides, or by consent of the party himself. If the legal method has not been employed, and the party expressly refuses his consent, an assumption of jurisdiction by the court will be purely arbitrary. This so called rule not merely overrules — it undertakes to repeal the law as declared in numerous decisions rendered by this court. (Smith vs. Rollins, 25 Mo., 408.) The other efEort was not less curious.
Until the eighth day of the term the action was a personal one only. The writ having been, for such a proceeding, served in the wrong county, therе was in effect no service at all. An amended petition was then filed, which converted the personal into a real action ; the effect whеreof is claimed (by relation presumably) to make the service appear sufficient from the beginning. This, at least, is the logic of the positions takеn here. Such devices, if sanctioned, would make our jurisprudence a mockery.
Even if the defendant were properly before the court for every purpose,there was no lawful authority for the final decree rendered at the return term. “ Every suit that shall not be otherwise disposed of according to law, shall be continued at the term at which the defendant is bound to appear, until the next term thereafter, and at such second term every suсh suit shall be determined.” (Wagn. Stat., 1039, § 5.) This suit not being in a county having over forty thousand inhabitants, nor founded on a bond, bill or note for the direct payment of *247money or property, (Wagn. Stat., 1014, § 5) nor yefc upon a judgment of any court of record or an open account, (Wagn. Stat., 1053, §§ 9,10) — either of which events would have рermitted it to be “ otherwise disposed of’ — the provision just quoted controlled it. (Dougherty vs. President, etc., 53 Mo., 579.)
We come now to consider the cause оf action. The agreement which the court was asked to enforce, appears in the following words:
“Know all men by these presents, that we, Josеph Huff and Elihu II. Shepard, have this day agreed as follows, to-wit: The said Joseph Huff has bargained and sold unto the said Elihu H. Shepard, all his real estate in Ironton, Mо., situate east of the Presbyterian Chureh, including all the personal property and household furniture thereto belonging, excepting, however, the family clothing, books, papers, etc., which are strictly private, and one sewing machine, at and for the sum of twenty-five hundred dollars; the said Shepard to assumе the amount owing to Iron county school fund, by the said Joseph Huff, and the balance of purchase money to be paid on such terms as may be agreed on between said parties. Given under our hands, etc.”
The Circuit Court undertook to compel performance of the final clause in this agreement, by rendering a judgment asrainst the defendant for $1,300 and interest. This was not enforcing the defendant’s contract; for he never bound himself to any such cash liquidation without regard to time. It was enforcing a new agreement, made for him by the court and thе plaintiff. So far as the defendant had bound himself at all, it was upon an express stipulation that the terms of payment should be only such as he might thereafter consent to in a further agreement. Time — being included in the terms — thus became of the essence of the contract.
Sueh an undertaking to settle terms at-a future day, is beyond the reach of any decree for specific performance. The court cannot compel parties to аgree. The remedy attempted would destroy the subject of treatment. In Kemble vs. Kean, *248(6 Sim., 333) tlie Vice Chancellor said: “ Can a man be compelled tо act at a theater by this court sending him to the fleet, where he cannot act at all ?” So, in this proposition to compel a person to аgree, the element of compulsion would annihilate .in. advance the thing it promised to create. For no contract can live in the law’s atmosphere, unless born of voluntary‘‘choice in the parties.
The judgment must be reversed ; and this court proceeding to make the only disposition of the subject which could be proper in the court below, dismisses the case.
The other judges concur.