121 Mo. App. 338 | Mo. Ct. App. | 1906
The record before us shows the following regular and irregular proceedings to have been liad in the circuit court of Oregon county. First, we find a judgment in regular form for the recovery of money entered by said court at its February term, 1905, in favor of James Orchard, defendant in error, as plaintiff there and against the National Exchange Bank, plaintiff in error here, as defendant there, for $364, together with interest and for costs, “and that the plaintiff have execution for said judgment and costs.” It is from this judgment that the bank has sued out and now prosecutes this writ of error.
It appears that there was pending in the circuit court of Oregon county, the case of State ex rel. E. 0. Crow, Attorney-General, Relator, v. Oregon County Bank, in which case one J. Posey Woodside had, at a prior term of court, been appointed receiver of the said Oregon County Bank; when and for what reason the receiver Avas appointed in the first instance does not appear, nor is any of the record, of that case before us prior to Avhat is termed the “surrendering settlement” of the receiver. The record does disclose, hOAvever, that there was pending in the court the case as stated, of the Attorney-General v. Oregon County Bank and that J. Posey Woodside was acting receiver therein; that at the August term, 1902, of said court, the receiver filed
As stated, nothing seems to have transpired in the matter from the August term, 1902, to the February term, 1904, Avhen, phoenix-like, a neAV case arose, from Avhence none can tell, for there is neither pleading by plaintiff or defendant, process, nor service of process on, nor was there appearance by the National Exchange Bank. That Avhich appears to be a neAV case on' the record, at the February term, 1904, is entitled J. Posev Woodside, Receiver, v. the National Exchange Bank, and the order of the court under this title made at that term recites in substance that at the August term of the court mentioned, an order was made by the court upon the National Exchange Bank, ordering it to turn over to J. Posey Woodside, receiver, etc., assets of the Oregon County Bank amounting to $364 as expenses, attorney’s fees, commissions for his services, etc., as receiver of the Oregon County Bank, and it having been made to appear to the court that such $364, nor any part thereof has ever been paid, it was therefore ordered that the National Exchange Bank be and appear at the
The next record entry appearing is of the February term, 1905, and of date March 1st, to the effect that James Orchard then made it appear to the satisfaction of the court that he had succeeded to the lights of J. Posey Woodside in the claim for $364 by assignment from Woodside of the claim for $364 and that on his motion, said James Orchard was substituted for J. Posey Woodside, “and that he be permitted to prosecute said cause in his own name and stead, the same as the said J. Posey Woodside could do.” And on the same day, at the same term, the National Exchange Bank not appearing in any manner, the court entered the following judgment:
“James Orchard v. National Exchange Bank.
“Now at this day, the above cause coming on to be heard, and plaintiff announces ready for trial and it appearing that the defendant, the National Exchange Bank, has been duly served with process, notifying it of the pendency of this suit, and the nature thereof, more than thirty days before the first day of the July term, 1904, of this court, and it further appearing to the court from the files herein that the National Exchange, Bank at the July term, 1904, of this court personally appeared and filed its answer in this cause, and the plaintiff herein demands trial and the defendant failing to appear further and the jury being waived, all and singular the matters and things being submitted
“It is therefore considered and adjudged by the court that the plaintiff, James Orchard, assignee of J. Posey Woodside, recover of and from the defendant, the National Exchange Bank, the sum of three hundred andsixtv-four dollars, that the same bear interest at six per cent, per annum and that plaintiff recover the costsherein laid out and expended, and that plaintiff have execution for said judgment and costs.”
The National Exchange Bank sued out this writ of error, on the ground that it has never had its day in court.
1. There are no exceptions before us. The record proper only is here. No motions for new trial or in arrest of judgment were filed. It is settled beyond controversy, however, that even in that state of the record, an appellate court will, on writ of error, examine the record proper and reverse the judgment for error appearing on the face thereof, when it appears that the court had no jurisdiction: first, of the parties; or, second, of the subject matter; or, third, when the petition fails to state a cause of action. [McIntire v. McIntire, 80 Mo. 470; K. C., etc., Ry. Co. v. Carlisle, 94 Mo. 166, 7 S. W. 102.]
2. It appears that in the case of Attorney-General v.
3. The judgment recites: “The National Exchange Bank has been duly served with process, notifying it of the pendency of this suit and the nature thereof more than thirty days before the first day of the July term, 1904, of this court. And it further appears to the court from the files herein that the National Exchange Bank, at the July term, 1904, of this court, personally appeared and filed its answer in this case and the plaintiff having demanded trial and the.defendant failing to appear further, a jury being waived,” etc. Now, if these recitals were true, there would be no doubt of the jurisdiction of the court over the person of the defendant, National Exchange Bank, for where service has been had according to law and the party appears and answers in response to such service, the court is certainly possessed of jurisdiction over the person of such defendant and the cause of action being of a class, as it is, over which the circuit court has general jurisdiction, the judgment entered would be valid, etc. The recitals of the judgment in that respect are untrue, however, and the law is well settled that the recitals of the judgment alone are not conclusive on this question. Indeed, the appellate court cannot determine from the mere recital of the judgment alone that the party has been duly served with process or that he has appeared and answered. Matters of this nature can appear only from an inspection of the entire record, and in determining this matter, it is the duty of the court to inspect the whole record and if, upon such inspection, it appears that the court had no jurisdiction over the person or the subject-matter of the action, the judgment will be declared to be void and for naught held. [Howard v. Thornton, 50 Mo. 291; Hope v. Blair, 105 Mo. 85, 16 S.
For the reasons stated, there was no case in court between the parties to this record and the judgment