Nevatt v. Springfield Normal School

79 Mo. App. 198 | Mo. Ct. App. | 1899

BOND, J.

This suit was instituted in the circuit court of Greene county on the fourteenth of January, 1898. Plaintiff had judgment for $186.50, which not having been entered! of record at the time of its rendition, the court made a nimc pro twne entry thereof on the twelfth day of April, 1898, to wit::

Account trial by court. Judgment for plaintiff for $186.50. “Charles Nevatt, Plaintiff, v. “Springfield Normal School, a corporation, Defendant.

“Now on this 14th day of January, 1898, comes on said cause to be heard, plaintiff appears in person and by attorney, and the court having heard the evidence and all things being-considered, finds that the defendant is a corporation duly organized under the laws of this state, and that the cause of action herein accrued in this county, and that at the time the summons herein was issued and from that time to the present, the said defendant had no office or place of business in this county, and at the time said summons was issued, and during the said time the president and chief officer of said corporation could not be found in this county. And it appears to the-court that defendant has been duly served with process in Henry county, Missouri, by the sheriff of said Henry county, on the 4th day of December, 1897, by delivering to John E. Fesler, the president of said corporation in Henry county, a copy of the writ of summons and a copy of the petition herein, apd that the defendant has failed to file herein any answer, demurrer or other pleading within the time prescribed by law, but makes default, and it is now ordered that the default of defendant be entered. And the evidence having been heard and all things considered, and the cause having been submitted for trial on the merits by the plaintiff, the court finds that the defendant is indebted to the plaintiff ,in the sum of one hundred and eighty-six dollars and .50 dollars ($186.50) for printing circulars and catalogues as per plaintiff’s account filed with his petition.

“It is therefore ordered and adjudged that the plaintiff have and recover of and from the defendant the sum of one hundred and eighty-six .50 dollars ($186.50) and his costs herein laid out and expended, for all which execution may issue.”

An execution issued on this judgment, upon which defendant Hindman was- garnished. His answer to the interrogatories was denied and issues joined. Hpon his motion a change of venue was granted to Lawrence county. At the August term of the circuit of that county he moved to dismiss the garnishment proceedings and for an allowance to himself, upon the suggestion that the judgment against the original defendant was rendered without service of process, and hence void. The learned trial judge acceded to this view, dismissed the garnishment proceedings, and discharged the garnishee, from which ruling plaintiff appealed.

non est return. It is conceded in the abstract of the record that the foregoing judgment correctly states the service of process upon which it was rendered, hence the whole question for decision is whether or not the recitals of the judgment show the court had no jurisdiction of the person of the defendant? Eor unless that appears from the face of the judgment its validity can not be questioned when sought to be enforced by garnishment, without subjecting it to collateral attack, and this the law does not permit. Godman v. Gordon, 61 Mo. App. 685; Wise v. Loring, 54 Mo. App. 258; Truesdail v. McCormick, 126 Mo. loc. cit. 45. If the judgment under which the garnishee is summoned is void, he is entitled to a discharge. If it is merely voidable, he is not for that reason entitled to a discharge. Hopkins v. Huff, 67 Mo. App. 394; 61 Mo. App. supra. This is-so because he occupies the status of a stranger to the judgment against his creditor, and hence can only urge against it the objections available on collateral attack. It is conceded that the-suit culminating in the foregoing judgment was -properly brought in Gi*ecne county where the cause of action accrued.' R. S. 1889, sec. 2527; Mikel v. Railway, 54 Mo. 145. Nor is it denied that the defendant was actually served with process in-Henry county, but the argument of respondent is, that the-issuance of a summons to the sheriff of Greene county and a return of non est, was a condition precedent to a right to serve the same defendant by summons in another county. The judgment recites as a fact all that could have been evidenced by a non est return of a sunpnons issued to Greene county. This recital of the judgment can not be impugned by matter mpms or by any other evidence than the record itself or some portion thereof. It is not shown by any part of the record before us that the judgment recital that the defendant therein had no-office or place of business in Greene county and that its president nor chief officer could be found in said county, was untrue. This being a domestic judgment rendered by a court of general jurisdiction and also of the subject-matter, its jurisdictional recitals, in the absence of affirmative record evidence-to the contrary, are conclusively presumed to be true, and as-the recital in question found the facts to be such as are required by statute to authorize the service of a summons in a-county other than that in which the suit was brought, it necessarily follows that there was no error in directing a summons to-the sheriff of that county in which the president or chief officer of the defendant could be found. R. S. 1889, sec. 2527. That this was done, appears also from the further recitals of" the foregoing judgment. What was the particular evidence-upon which the court rested its finding of the facts necessary to authorize service in Henry county, is immaterial. If (which. we do not concede) such facts eonld only be shown by a non est return, then there is nothing in the foregoing judgment which disproves the possibility that such a return was exhibited to the court. It is clear, therefore, according to the facts found in the foregoing judgment, that the service of process on the defendant in Henry county was in exact accordance with the statute governing suits against domestic corporations. Ve are therefore unable to accept the conclusion to which the argument of respondent’s counsel leads that the judgment in this case does not show jurisdiction of the person of the defendant therein because it is not accompanied by a further record reciting a return of non est upon a sunpnons issued in the county where the suit was brought. That a judgment recital of due service may be contradicted by the return itself, if copied in the record, is the law. Laney v. Garbee, 105 Mo. 355. But that it is necessary to validate a judgment of recital of due service against collateral attack that the service itself should be shown in the record, is a proposition unsustained either by reason or authority.

The learned counsel for respondent cites Story v. Ins. Co., 61 Mo. App. 531. That case merely passed on the sufficiency of the return in the county where the suit was brought, the question of its sufficiency being raised upon a direct attack by writ of error. Obviously it has no bearing on the point under discussion. Neither does Gate City Electric Co. v. Corby, same volume, touch the point under review. In that case the court merely held that a judgment was void which was based upon a return (preserved in the record) which showed on its face no service upon the defendant, and that a garnishee was entitled upon showing that fact to be discharged, which is in accordance with the well settled rule.

Our conclusion is that the trial court erred in sustaining the motion of the garnishee for the dismissal of this proceeding against him. The judgment herein is therefore reversed and the cause remanded.

All concur.