58 Mo. 242 | Mo. | 1874
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 State 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 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 validity of the second summons were not well taken. The first, being unquestionably void, could not affect the second, which was •therefore the only original process 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 certain 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 neither 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 was but one defendant, and he was served in another county.. He was not before'the court for any purpose,- except that which he chose to .announce in his
“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 party 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, there was in effect no service at all. An amended petition was then filed, which converted the personal into a real action ; the effect whereof is claimed (by relation presumably) to make the service appear sufficient from the beginning. This, at least, is the logic of the positions taken 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 such 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
We come now to consider the cause of action. The agreement which the court was asked to enforce, appears in the following words:
“Know all men by these presents, that we, Joseph 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, Mo., 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 assume 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 the 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 agree. The remedy attempted would destroy the subject of treatment. In Kemble vs. Kean,
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.
