97 Mo. App. 681 | Mo. Ct. App. | 1903
— The object of this suit is to enjoin the collection of a judgment which was recovered by C. D. Yancey, one of the defendants herein, against John E. Patterson, Gr. M. Patterson, J. A. Christian, Gr. A. Bingham, E. R. Hicks, Joseph Dalton, Herman Borth, R. C. Barrett, Thomas Clark, Neely Moore, Nathan Price, J. A. Ponder and W. H. Merrill, the plaintiffs'herein, on September 20,1900.
John F. Patterson was sheriff of Ripley county, Missouri, qualifying as such in January, 1893, and during bis term C. D. Yancey recovered a judgment against one Lane in which an execution was issued and delivered to said Patterson. The other plaintiffs in the present action were said Patterson’s sureties on his official bond as sheriff, and because of his alleged misconduct in the matter of the special execution against Lane, Yancey instituted an action against him and his said sureties on the bond.
That action was begun in the circuit court of Ripley county on the twenty-eighth day of December, 1899, and was returnable to the April term of that court, which had two terms a year, to-wit, in April and November. A summons to the defendants was issued and placed in the hands of the coroner for service, one of the defendants (said John F. Patterson) being the sheriff of the county, and the coroner made a return showing personal service on all the defendants of a writ of summons, which commanded them to be and appear at the next term of the Ripley Circuit Court to be begun and held on the first Monday in April, 1900. This service was made on January 30, 1900. Three of the defendants in that action (plaintiffs in this one) to-wit, Neely Moore, J. A. Ponder and Joseph Dalton, instead of being summoned to . appear at the April term, 1900, of the Ripley Circuit.Court, were, by a mistake of the clerk of that court in filling out the blank writs of sunlmons, commanded to appear at the December term thereof, 1900, as was shown by the introduction in evidence of the copies of the summons left with them. This fact is material as to defendants Ponder and Dalton,
An answer to plaintiff’s petition in the action was filed in behalf of all the defendants and signed by three attorneys who purported on the face of the answer to represent and act fpr all the defendants. These attorneys were Thomas Mabrey, Gr. W. Crowder and A. J. McCullom. The answer admitted the election of John F. Patterson as sheriff, and that he qualified in that capacity, giving a bond with the other defendants as sureties thereon, but denied all other allegations of the petition and set up as a further defense the three-year limitation statute. Said answer was filed April 4, 1900, and was met by a replication setting up facts in avoidance of the plea of the statute of limitations.
Tancey made application for a change of venue from Ripley county and by direction of the defendants the venue was changed to the circuit court of Carter county. J. P. Campbell, circuit clerk of Ripley county, made out the transcript but, according to the testimony of Neely Moore, told the latter it would not be forwarded until the costs were collected from cr paid by Yancey. Thomas Mabrey, one of the attorneys for the defendants, also testified that Campbell made the same statement to him. The transcript was sent to Carter county, however, in time for the case to be docketed for trial at the September term of the circuit court, at which term Yancey appeared and introduced testimony in support of his petition, but the defendants did not appear nor make any defense; so judgment went against them for about six hundred dollars, on which an execution was afterwards issued. That judgment and that execution are sought to be enjoined in the present suit on the grounds that Ponder and Dalton were never properly summoned in the action and did not appear therein nor authorize any attorney to appear for them, and that
The present proceeding was tried before the Hon. J. L. Fort, judge of the circuit court of Carter county, and resulted in a decree dismissing the plaintiff’s bill, from which decree an appeal was taken to this court. Prior to the adjournment of the term of said circuit court at which the decree was rendered, to-wit, the April term, 1901, Judge Fort overruled the motions of the plaintiffs for a new trial and in arrest and extended the time for filing the bill of exceptions to a day during the ensuing vacation of the court. Before that day came, Carter county had been taken out of Judge Fort’s circuit (the Twenty-second) and attached to the circuit of Hon. W. N. Evans (the Twentieth) by an act of the Legislature; but when their bill of exceptions was prepared plaintiffs presented it to Judge Fort and it was signed by him and filed in the office of the circuit clerk of Carter county on January 24,1901, which was within the time fixed, but several months after said act of the Legislature had taken effect.
Following that rule and the other cases cited, instead of affirming the judgment we would be bound to say that these appellants are entitled to a new trial if their bill of exceptions is invalid because of the statute transferring Carter county to another judicial circuit, unless their own negligence or misunderstanding of the law prevented them from obtaining a valid one.
But respondents contend the appellants were at fault because a statute was in force at the time which empowered Judge Evans, as successor of Judge Fort,
“In any case where the judge who heard the cause shall go- out of office before signing the bill of exceptions, such bill, if agreed to be true by the parties to the action, or their attorneys, or shown to the judge to be correct, shall be signed by the succeeding or acting judge of the court where the case was heard.” R. S. 1899, sec. 731.
What is the effect of that statute on the matter in hand? We have not found a decision by an appellate court of this State prior to its enactment, or since, that an ex-judge before whom a case was tried while he was in office was incompetent to sign the bill of exceptions; but there was a decision shortly before the passage of the statute, and which doubtless caused it to be passed, that the successor of such ex-judge could not authenticate a bill in a case which the latter had tried. Connelly v. Leslie, 28 Mo. App. (K. C.) 551.
We have found the following decisions in other States holding that an ex-judge can not sign a bill in a case he had tried. State v. Weiskettle, Crittenden v. Schermerhorn, supra; Phelps v. Conant, 30 Vt. 277; Faulconer v. Warner, 2 Wash. 525; Smith v. Baugh, 32 Ind. 163; McKeen v. Boord, 60 Ind. 280; Reed v. Worland, 64 Ind. 280. The ruling was the other way in the cases next cited, wherein bills settled and signed, either by a judge no longer in office or by one no longer holding the court where the cause was tried, were upheld as valid. State v. Barnes, 16 Neb. 37; Guick v. Sasche, 31 Id. 312; Fellow v. Tait, 14 Wis. 153; Davis v. Menasha, 20 Id. 205; Halle v. Haselton, 21 Id. 322; Galbraith v. Green, 13 S. & R. (Pa.) 85; Frazier v. Laughlin, 6 Ill. 185; Bacon v. State, 22 Fla. 46; Ex parte Nelson & Kelly, 62 Ala. 376; Stirling v. Wagner, 4 Wyo. 5; Wheeler v. Fick, 4 New Mex. 36. It is noteworthy that the Indiana rule that the succeeding judge must sign the bill, is criticised as unsound by an able author. Elliott, App. Prac., sec. 799.
There is a present tendency to uphold bills of exceptions when substantial justice will be thus promoted and the purpose of the bills subserved, rather than to reject them on technical grounds as courts were once prone to do. Vicksburg, etc., Ry. Co. v. Ragsdale, 51 Miss. 458. These instruments are intended to carry into the record of a cause a true narrative of the evidence received and the rulings made which affected the rights of the litigating parties, and which would not otherwise be recorded. When a bill does this, the purpose sought is defeated, instead of realized, by rejecting it on a technical objection. And one court composed of eminent jurists was so impressed by this fact that under a statute such as we have (2 Rev. St. 1899, sec. 10119) requiring a court stenographer to keep notes of the testimony and exceptions, a bill containing such notes was considered though unsigned by the judge. Chose v. Vandergrift, 88 Penn. St. 217.
Another court of last resort, while holding that an ex-judge may authenticate a bill in a case tried before
In the case at bar, it has not been suggested that the bill of exceptions is either false or incomplete, but, instead, the appellants accept its recitals as full and correct; and it is reasonable as well as according to the spirit and command of the. code to be liberal gather than technical in matters of practice when liberality will achieve justice and narrowness defeat it. While there is some strength M the argument that a solemn act like signing a bill of exceptions ought not to be performed by a person who has ceased to be an official and is not under official responsibility, there is no substantial merit in the view that it can not be performed by a judge who is still in office, although his territorial jurisdiction may have been so changed before he signed the bill as to no longer contain the bailiwick in which the cause was tried; which i's the state of facts presented in this case.
Recurring to our statute on the subject (sqc. 731) it is apparent that said statute does not in terms embrace an instance like the one before us, though perhaps susceptible of being held to embrace it without violence to the language used or the intention of the Legislature. But that section must be construed in connection with all other provisions of the statute in pari materia and the decisions construing them, and with regard to the functions of bills of exceptions.
If Judge Port had gone out of office before he signed the present bill, said section would be plainly applicable. He had not, however, but was still occupying the same office he had theretofore held, namely, judge of the Twenty-second judicial circuit, from which circuit Carter county had meanwhile been taken. The judges of the circuit courts are officers of the several judicial circuits of the State and one of,them does not
We must consider too, the rule that if a special' judge is elected to try a cause, or a judge is called in to hold a term of court in a county not in his circuit, the authority of either of those officers to sign bills of exceptions in a case tried by him continues after the term when he was chosen or requested to serve and until the final disposition of the case. R. S. 1899, secs. 1678, 1682; State v. Davidson, 69 Mo. 509; State v. Sneed, 51 Mo. 592; State ex rel. v. Wofford, 111 Mo. 526. It was held in the case last cited that a special judge may be elected to sign a bill of exceptions, if the judge who heard the trial has gone out of office and his successor is disqualified to sign as provided in section 731, supra, because he was of counsel in the case. Judge Port could have been called in by Judge Evans to hold a term of the Carter Circuit Court and when holding it could have signed the present bill if presented to him within the time limited, as he could transact any other business which came before said court while he was presiding. This being true, and inasmuch as the time for filing the bill had been extended into the vacation of court, we think it would be highly technical to hold that he was' without power to sign it and that Judge Evans was the one to sign although he knew nothing about the exceptions, while Judge Port knew all about them and was still in office.
We rule, therefore, that the bill of exceptions was properly authenticated by the signature of Judge Port, without ruling that it would have been invalid had Judge Evans signed it.
“If a person sui juris is sued and brought regularly into court by process to answer a petition that states on its face a good cause of action, though he may have a good defense, yet if he omits to plead it, or if he pleads it yet fails to sustain it by proof, and the judgment goes against him, his defense is extinguished in the judgment and can not afterwards be set up against it.”'
These plaintiffs may have possessed a perfect defense to Yancey’s action on Patterson’s bond as sheriff, and that defense may be apparent on the face of the pleadings in said action, yet without additional equity they can not have the judgment against them enjoined. To have that done they must show both that they had a meritorious defense and that by some mischance or misconduct unmixed with negligence or inattention of their own of their counsel,- they were prevented from interposing it; otherwise, the only method by which they could escape the force and effect of the judgment was by appealing to a court of last resort or suing out a writ of error. Hamilton v. McLean, 139 Mo. 678; Fears V. Riley, 148 Mo. 49.
Appellants say the pleadings in the action on the bond show Yancey’s cause of action was barred, when begun, by the statute of limitations; and without deciding the point, we state that if this argument is sound it affords no ground for enjoining the judgment, for this reason if for no other; a writ of error could have been procured and the question tested on appeal without a bill of exceptions as the fact appears, if at all, in the record proper. To' successfully maintain the present suit it is incumbent on the appellants to establish an equity in their favor by showing judgment in the other
A judgment entered in an action without notice to-the defendant is a nullity, for one must have his day in court. Smith v. Ross, 7 Mo. 463; Roach v. Burnes, 33 Mo. 319. And that a defendant was not notified or summoned may be shown in a direct proceeding to set aside ¿he judgment by evidence aliunde the return of the officer on the writ of summons and even to contradict his return. Smoot v. Judd, supra. Parol testimony was admissible to prove the mistake made by the clerk of the circuit court of Ripley county in filling out the copies on the writs of summons for December instead of for April, when the next term of the circuit court was-to convene.
But that mistake could have had no influence on the action of any of the defendants except Ponder and Dalton, for it is admitted the others appeared and answered Yancey’s petition at the April term. So far as. Ponder is concerned, all that is proven is that he did not personally engage Mabrey to act as attorney for him, which was testified to by Mabrey himself. But Mc-Cullom and Crowder were also attorneys representing the defendants in the bond case and Crowder was the one whom they engaged, Mabrey coming into the case at Crowder’s request to assist in the defense. There was no testimony from either Crowder or Ponder that the answer filed and the other steps taken in behalf of' Ponder were unknown to or unauthorized by him. Neither of those persons was put on the stand and it is certainly a significant circumstance that Ponder’s testimony as to the authority of the attorneys to represent him was not taken, as that issue of fact was vital.
The rule now is that the party for whom an attorney assumed to act in a cause may, in a proceeding to set aside the judgment therein, question the attorney’s authority. Marx v. Fore, 51 Mo. 70; Eager v. Stover, 59
Dalton’s situation is more favorable, because the copy of the summons delivered to him shows he was commanded to appear at the December term of the Eipley Circuit Court and there was no such term. He swears positively that he never spoke to any person to represent him but, as he had ample time between the date when he was served and the date when he was to appear, intended to go to Doniphan, the county seat of Eipley county, in December and engage counsel; nor is there any positive testimony to weaken or impeach what Dalton stated. It is rather strange that he should not
The next inquiry is as to the effect of the statement of Campbell, the clerk of the Ripley Circuit Court, to Mabrey and Moore that he would not send the transcript of the case until the costs had been paid by Yancey and the right of the answering defendants and their counsel to rely on that statement. As to this matter it is perfectly clear that the defendants or their counsel were negligent and that the statement of the clerk could not warrant them in failing to follow the case to Carter county and be present when it came on for trial at the September term. Equity aids the vigilant and not the inattentive, and this maxim is nowhere more rigorously applied than in suits to set aside judgments at law. A party who fails to make his defense to an action at law and then seeks the intervention of a court of equity must not only show some ground for equitable relief, such as fraud, accident or mistake, but must show that he himself was not guilty of any lack or diligence and that he did all that could reasonably have been expected of him. Yantis v. Burdette, 3 Mo. 457; Reed v. Hansford, 37 Mo. 197; Payne v. O’Shea, 84 Mo. 128; Carolus v. Koch, 72 Mo. 645; Shelbina Hotel Ass’n v. Parker, supra. Nor will a party be relieved on account of inattention or negligence of his counsel, unless it was caused by some misconduct of the
Our statutes in regard to changes of venue in force when the change was taken in the case brought by Fancey, required the clerk of the Ripley Circuit Court to make out a transcript of the record immediately after the order for the change of venue was made and transmit the same, duly certified, to the clerk of the Carter Circuit Court under a penalty of one hundred dollars to the aggrieved party for failure to do so. R. S. 1899, sec. 825. They also provided that the party applying for the change should pay the costs attendant thereon and if he failed to pay within fifteen days after the change was granted, a fee bill could be issued against him and his sureties. R. S. 1899, sec. 828.
As it was the duty of the clerk of the circuit court of Ripley county when the change of venue was granted to forthwith send the transcript to Carter county, so it was "the duty of the defendants in said cause and their attorneys to follow the case to the Carter Circuit Court, whither it was sent at. their suggestion, and be present when it was called for trial there; for they were bound to know the law in the matter and govern themselves accordingly. Besides, Tancey may have paid the costs after Campbell made the statement which is credited to him. At all events, these appellants and their counsel are not excusable for relying on Campbell's assertion that he would not send the transcript until payment was made. Lack of vigilance and care on the part of the appellants appears from their own testimony, whereas it is incumbent on them to make a showing of thorough diligence in order to be relieved.
Setting’aside judgments is an act which courts of equity are chary about doing, while the standard of good faith and activity to which the party applying for the remedy is required to show his conduct conformed before his prayer will be granted, is a high one, and
. The judgment of the court below in the present suit dismissing the appellants’ bill is affirmed against all the appellants except Dalton, as to whom the respondents enter an agreement that the judgment in the other cause may be set aside.