Newton v. Newton

32 Mo. App. 162 | Mo. Ct. App. | 1888

Haul, J.

— The plaintiff and defendant are husband and wife. On the twenty-first day of March, 1887, the plaintiff filed a petition for separate maintenance in the circuit court of Miller county on the ground of abandonment by her husband. Summons was issued on March 22, made returnable to the September term, 1887, of the circuit court, and was served on the defendant on March 28, 1887. The spring term of the circuit court began on the last-named day and on that day the plaintiff filed a motion asking for temporary separate maintenance during the pendency of the proceeding theretofore instituted against the defendant. On the fifth day of said term of the court, viz., on April 1, 1887, the court heard the motion, and ordered that the sum of one dollar per day be paid by the defendant to the plaintiff for her support and maintenance on the fifteenth day of each month, for the month, until further order by the court. On the first day of the September term, 1887, of the circuit court, the defendant made application for a change of venue, which was granted, and the'cause was transferred to the circuit court of Callaway county. Afterwards, on the first day of February, 1888, the clerk of the circuit court of Miller county, the defendant having failed to pay the allowance of temporary separate maintenance made by that court, issued an execution against defendant for the amount of such allowance that had accrued from the first of April, 1887, to the first of February, 1888. The defendant filed a motion in said court asking the court to quash said execution. The court refused to entertain the motion, and the matter is here by appeal.

The original proceeding by the plaintiff for separate maintenance was instituted under section 3283, Revised Statutes. In such a proceeding the like process is required as in other civil suits. R. S., sec. 3288. Until the return day of the summons, therefore, the circuit court had no jurisdiction of the defendant, and was without power to make any order against him. The order made by the court before the return day of the summons was for this reason null and void. A defendant is no more in court before the return day of the summons than if he had not been served with summons. A judgment against a party who has not been brought into court by service of any process is coram non judice and void (Cloud v. Inhabitants of Pierce City, 86 Mo. 358), and so, too, is a judgment rendered against a party before the return day of the process. The judgment being void, the execution was wrongfully issued by the clerk, and the court below should have quashed it. The motion to quash the execution was properly filed in the Miller circuit court, because the execution issued from that court. “ Application to quash a writ must always be presented to the court whence it issued. One court will not entertain a motion to set aside the process of another court.” Freeman on Ex., sec. 75; Mellier v. Bartlett, 89 Mo. 137.

Judgment reversed and cause remanded.

All concur.