204 Mo. 687 | Mo. | 1907
This cause is here upon appeal by the plaintiff from a judgment of the circuit court of Jasper county, Missouri, sustaining a petition for review and setting aside a judgment rendered in an attachment proceeding in favor of the plaintiff and against these defendants.
This is an action instituted by petition in the circuit court of Jasper county, before the Hon. Hugh Dabbs,' on the 25th day of November, 1903, for review of a judgment rendered in said cause on the.4th day of March, 1903, which said judgment was in favor of the Miners’ Bank against T. H. Kingston and Hannah M. Kingston, partners, doing business under the firm name of T. 'H. Kingston & Company, wherein the Miners’ Bank brought suit by attachment and attached a lot and a part of another lot in the city of Joplin to satisfy a elaim against T. H. Kingston & Company for the sum of $457.35. The plaintiff in the attachment suit brought its suit on the 14th day of June, 1902. In its petition it alleged that the defendants were non-residents of the State of Missouri, and
“That on the 4th day of March, 1908, the Miners’ Bank obtained a judgment for $430.08 on the first count of its petition and forty dollars on the second count of its petition. That the said judgment so obtained by said plaintiff was in an attachment suit against the defendant Hannah M. Kingston and T. H. Kingston and in said suit the said plaintiff caused to be attached the property before described. That the said plaintiff, in •its petition filed in said cause, alleged, among other*692 things, that the defendants and each, of them, were non-residents of the State of Missouri, and could not he served with the ordinary process of law. That an order of publication in due form was thereupon issued to the clerk of this court and the same was duly published in the Joplin Globe, a newspaper published in Joplin, Missouri, at least once a week for four consecutive weeks, the last publication being at least fifteen days before the first day of the March term, 1903, and the plaintiff so gave constructive notice to the defendants in said suit, but defendant further states that she had no actual notice of said suit and no appearance was made by her or anyone for her in said suit, and the said judgment was rendered against her upon default or failure to appeal and plead in said cause. The said defendant Hannah M. Kingston further states that she had and now has a meritorious defense against plaintiff’s said suit, in this: That the plaintiff’s said suit was founded upon a certain promissory note executed to said plaintiff by said defendant, T. H. Kingston, for and in the name and on behalf of said T. H. Kingston & Company, a corporation then existing and being composed of said T. H. Kingston and Frank Kingston, who were the sole partners in said firm. That the said plaintiff in its petition alleged and charged that the said firm of T. H. Kingston & Company was composed of T. H. Kingston and Hannah M. Kingston, and alleged and charged that said defendant was one of the partners of said firm SO' executing said note, and jointly liable with the said T. H. Kingston.
“This defendant states that such allegation was not time, but that this defendant was not a partner in the firm of T. H. Kingston & Company and had no interest in said firm, and had no interest or share in the consideration for said note, and this defendant further states that she has not at any*693 time claimed to have any interest in said firm or its business, and has not held herself out to the plaintiff as a partner in said firm, and this defendant further states that she was not at the time of said suit or at any other time indebted to the plaintiff. Wherefore, she asks the court to reopen and review the said cause and to discharge her hereof with judgment for her costs.”
The petition was sworn to. The answer of the defendant admitted that at the March term, 1903, it obtained a judgment against Hannah M. Kingston for $438.08 on the first count and forty dollars on the second count; admitted that the suit in which judgment was obtained was an attachment suit brought against Hannah M. Kingston and T. H. Kingston, and that in said suit caused to be levied upon lots 37 and south thirty feet of lot 36 in Gray’s addition to the city of Joplin; admitted that said plaintiff in said petition alleged among other things that said defendants, and each of them, were non-residents of the State of Missouri, and could not be served with process in this State; admitted that the order of publication in due form was thereupon issued and the same was duly published in the Joplin Globe, a newspaper published in Joplin, at least once a week for four consecutive weeks, the last publication being at least fifteen days before the March term, 1903, of this court; admitted that the plaintiff so obtained constructive service upon the defendants to this suit, and the plaintiff admitted that no summons was served upon defendant in person and no appearance was made for her by anyone, and that judgment was rendered upon her failure to appear and plead. The defendants denied the other allegations in said defendant’s petition for review. As a second defense the plaintiff herein answering, states, that the said lot 37 and the south thirty feet of lot 36 in Gray’s
“ To M. B. Coburn and Annette Coburn:
“You as the actual tenants of T. H. Kingston and Hannah M. Kingston occupying lot thirty-seven (37) and the south thirty (30)- feet of lot thirty-six (36) in Gray’s Second Addition to Joplin, as their tenants, are hereby notified that the real estate above described has been attached by the Miners’ Bank and levied upon by virtue of a writ of attachment which was originally returnable to the September term, 1902, as the property of T. H. Kingston and Hannah M. Kingston, but owing to the fact of a failure to obtain service upon T. H. Kingston and Hannah M. Kingston by publication, the same will be triable at the March term, 1903, J oplin, Mo., January 2, 1903.
“James T. Owen, Sheriff of Jasper County,
“By C. H. Kier, Deputy Sheriff.”
The testimony on the part of the petitioner, Ham nah M. Kingston, tended to show that she has a meritorious defense against plaintiff’s original suit by at
The testimony on the part of the plaintiff, the Miners ’ Bank, tended to show that Mrs. Kingston, the petitioner in the case at bar, heard that the lots were attached, by letter received in June, 1903, by Mr. Kingston from Mr. Coburn, her tenant in the Joplin house. In October, 1902, she wrote a letter to the Miners’ Bank in which she said: “I understand you have brought suit against T. H. Kingston & Company and named me as part of that Company. I am not, nor never was part of that Company. Yours truly, Hannah M. Kingston.”
At the close of the evidence the cause was submitted to the court and on the 11th day of June, 1904, the petition for review of the judgment filed by Hannah M. Kingston was sustained. A timely motion for new trial was filed and by the court overruled, and from the finding and judgment of the court upon this petition for review the plaintiff prosecuted this appeal and the record is now before us for consideration.
OPINION.
The record in this cause discloses the following assignment of errors:
First. That the court erred under all the evidence in sustaining the defendant’s petition for review.
Second. The court erred in refusing to set aside the order sustaining the petition and to grant a new trial.
It is conceded that the petitioner, Hannah M. Kingston, was not brought into court in the original proceeding by personal service, but by order of publication. This proceeding is predicated upon the provisions of section 777, Revised Statutes 1899, which provides that, “When such interlocutory judgment shall be made and final judgment entered thereon against any defendant who shall not have been summoned as required by this chapter, or who shall not have appeared to the suit, or has been made a party as the representative of one who shall have been summoned or appeared, such final judgment may be set-aside, if the defendant shall, within the time hereinafter limited, appear, and by petition for review, show good cause for setting aside such judgment.”
It is also conceded that the petitioner instituted this proceeding within the time provided by the statute, hence there is really but one question before the court, and that is whether the evidence developed upon the trial of the issues in this proceeding was sufficient to authorize the court to sustain the petition for review and vacate the judgment.
The record discloses that the petitioner made no appearance to the suit and that she had not been summoned as required by law.. There was also evidence tending to prove that the judgment which was obtained by the appellant was predicated upon a petition which alleged that respondent, Hannah M. Kingston, was a member of the firm of Kingston & Company, and that such allegation was not true in fact.
It is earnestly insisted by learned counsel for appellant that it was incumbent upon the petitioner, before she is entitled to the relief sought in her petition for review, to show that she had no actual knowledge of the existence of the suit. It is further urged that the respondent petitioner, as disclosed by the record,
Our attention is directed to the cases of Ryder v. Phoenix Insurance Co., 101 Mass. 548; Mueller v. McCulloch, 59 Minn. 409, and Cutler v. Button, 51 Minn. 550. A careful analysis of those cases convinces us that they do not support the contention of appellant. In the Massachusetts ease it will be observed that there is no similarity between that proceeding and the case at bar. That controversy related to a policy of insurance, and in the petition for review plaintiff claimed that there was some mistake as to the insurable interests of certain parties, and that the agreed statement of facts upon which the cause was submitted was entered into in consequence of that error. It was alleged in that case “that the plaintiffs, until about the time of
It is manifest that case furnishes no support to the contention of appellant in the case at bar, for in that proceeding, as evidenced by the opinion of the learned judge, there was a full appearance and the case was contested and formally submitted to the court by the parties appearing, and it was properly held that a review should not be granted and the judgment vacated. But that is not this case. We have here a petitioner for review who was not served with personal process as provided by the statute, who made no ap
It is sufficient to say of the Minnesota cases that the provisions of the statute of Minnesota upon which those proceedings were predicated were entirely dissimilar to the provisions of the statute under which the petitioner in the case at bar is proceeding. It is apparent from the decisions in those cases that no definite time is fixed by the statute upon which they are based for filing petitions for review, but that this is a matter wholly within the proper exercise of the discretion of the court, as to whether or not the application to vacate the judgment has been made within a reasonable- time after the actual knowledge of such rendition of such judgment had reached the party applying to have it set aside. The statute under which the petitioner in this case is proceeding plainly provides that the final judgment may be set aside if the defendant shall within the time hereinafter limited appear and by petition for review show good cause for setting aside such judgment, and the subsequent provisions of the statute fix the time definitely in which the party shall have the right to resort to the remedy furnished by section 777 by petition for review.
We are unwilling to say that the mere fact that the respondent in this cause having heard of the institution of this suit by attachment and failed to appear either in person or by attorney, and make defense to the action, would deprive her of the right to avail herself of the provisions of the statute in reference to having the cause reviewed. There was no personal service with process, and even though she knew that the proceeding had been instituted, she would have the right to rely upon the provisions of the statute, and if within the period as fixed by it she presented her pe
In Siling v. Hendrickson, 193 Mo. 365, it was sought in that case to avoid a defect in the proceeding in reference to notice to the actual tenants as provided by section 388, Revised Statutes 1899, by showing that al-. though the actual tenants were not notified as required, still they had actual notice of the pendency of the suit prior to the rendition of the judgment, and it was insisted that this sufficiently met the requirements of the statute. This court, however, announced in that case that this contention was untenable, and said: “It might with equal propriety be claimed that a court acquired jurisdiction of a defendant, who had not been brought into court by any sort of process, by showing, dehors the record, that the defendant actually knew there was a suit pending against him. The requirements of the statute are mandatory, and this is so for wise reasons, to-wit, that the record shall affirmatively show that the notice that the law requires was served upon the defendant and that the matter of whether or not a defendant had notice should not be allowed to rest in parol.”
But aside from what has heretofore been said as to the sufficiency of the evidence disclosed by the record to authorize the court to sustain the petition for review, it is manifest from the record before us that the court was fully justified in sustaining the petition for review and vacating the judgment for the very apparent reason disclosed by the record in the original proceeding, that the provisions of subdivision 3 of section 388, supra, in respect to giving notice to the actual tenants, were not complied with. It will be observed that the subdivision of the statute above referred to, after enumerating the essential requirements of the return of the officer upon the writ of attachment and what
There was a sufficient showing made upon the trial of the issues before the court in this proceeding to warrant the court in sustaining - the petition for review. The testimony introduced by the respondent tended to 'show that she had a good and meritorious defense to the action and that the petition of plaintiff upon which the judgment complained of was obtained, was not true in a matter material to the issue presented by the petition. However, while we are of the opinion that the conclusion of the court, as reached in this proceeding, was proper, yet it is apparent that the order and judgment of the court in which the petition for review was sustained does not fully conform to the requirements of the statute. The order so far as it goes is correct, wherein it is recited that the “petition is taken up and being seen and heard and fully understood by the court the same is sustained,” but this should be followed by an order that the judgment be set aside on condition that the defendant answer or demur to the petition o‘f plaintiff upon which the judgment was rendered within a reasonable time to be ordered by the court. Therefore, it follows that the judgment of the court should be reversed and the cause remanded with directions, to the court to modify the judgment under review so as to conform to the statute as above