59 Mo. App. 3 | Mo. Ct. App. | 1894
This is a bill in equity to enjoin the collection of a judgment; The petition alleges that J. F. Bedford, a justice of the peace of Barry county, rendered a judgment against the plaintiff and in favor •of W. A. Howell, one of the defendants; that the
Will a court of equity enjoin the levy of an execution issued on a void judgment of a justice of the peace, is the only question presented, by this record. On this question the reported cases in this state can not be reconciled.
This court first passed on the question in the case of Bornschein v. Finck, 13 Mo. App. 120. There the jurisdiction was upheld on the ground that the defendant in such a judgment had no adequate remedy at law.
Prior to this the supreme court, in a case involving the same principle, reached the contrary conclusion. Stockton v. Ransom, 60 Mo. 535. There the plaintiff sought to enjoin the sale of personal property under an execution issued on a void judgment. The pretended judgment was rendered by the probate court. The supreme court held that, so far as the facts appeared, the plaintiff’s remedy at law was ample and adequate.
The next case in chronological order is that of Bear v. Youngman, decided by the Kansas City court of appeals (19 Mo. App. 41). There the plaintiff sought to enjoin the sale of his goods under an execution issued upon a void judgment rendered by a justice. The plaintiff claimed that the judgment was void because it was rendered-on Thanksgiving day. Judge-
The last case on the subject is that of the St. Louis, Iron Mountain and Southern R’y Co. v. Reynolds, 89 Mo. 146. There the judgment of the justice was obtained without notice. Execution was issued, and the plaintiff sought to enjoin its enforcement. Judge Sherwood, who rendered the opinion of the court, said: “If the judgment of the justice is void, then will the •execution issued thereon be void also, and equity will not interfere to do a nugatory act. The remedy of the railway is ample and adequate at law, and this prevents the interposition of a court of equity, as a suit cordd be maintained against the constable as a trespasser, and the purchaser’s pretended title would be valueless. This is elementary law. Sayre v. Thompkins, 23 Mo. 443; Deane v. Todd, 22 Mo. 90; Bank v. Meredith, 44 Mo. 500; High on Inj., secs. 89, 125; 2 Story, Eq. Jur., sec. 898, and cases cited.” This decision seems to be decisive of the present case. We only wish to suggest, in this cosinection, that the decision of the supreme court in reference to the liability of the constable as a trespasser seems to be opposed to a former decision of the same court in the ease of Howard v. Clark, 43 Mo. 344. There it is decided that, if the process is regular on its face, a constable need only look to the jurisdiction of the court over the subject-matter of the action; that if the court rendering the judgment had such jurisdiction, and it had only failed to obtain jurisdiction of the person of the defendant in the action, the officer would be protected. To the same effect is Melcher v. Scruggs, 72 Mo. 406; Miller v.