Underwood v. Dollins
47 Mo. 259
Mo.
1871
Check Treatment
Currier, Judge,

delivered the opinion of the court.

This proceeding was instituted for the purpose of avoiding a judgment rendered upon constructive notice. The judgment complained of was rendered April 25, 1866. On the 23d of April, 1868, the petitioners (defendants) served notice upon the opposite party, to the effect that petitioners would immediately file with the clerk of the court where the judgment was rendered their petition under the statute to avoid and disprove the damages recovered against them in the former suit, and that the petition rvould be presented to the cour# for hearing at its next regular session, which was appointed by law to be in the month of the following October, about two years and six months from the date of the original judgment. The petition was filed with the clerk of the court on the 23d day of April, 1868. Upon this state of facts the question is raised whether the proceeding was commenced in time to bring it within the. statutory limitation applicable to such cases. The attachment act (Gen. Stat. 1865, p. 569, § 60) provides that a party against whom a judgment is rendered upon constructive notice “shall be allowed two years, and no longer, from the date of the judgment, to appear and disprove or avoid the debt or damages adjudged against him.” The limitation is strictly to two years; and the statute, in fixing the' limitation, makes no distinction between the time for an appearance and the time for making the proofs. According to *261the literal reading, both must be done within the prescribed two years. No reasonable liberality of construction can make the statute mean less than this: that the complainant shall have his cause in court in a position to be heard within the time specified. But that involves a prior notice to the opposite party, informing him of the day and place and when where the petition will be presented, as provided in the sixty-first section of the act. It is thus evident that such notice — the -statute (§ 61) requiring fifteen days — must be given nt least fifteen days before the expiration of the two years’ limitation. In the case at bar, the period of limitation expired on the 25th day of April, 1868, that being two years from the date of the rendition of the judgment, and the notice was not given until the 28d day of April, 1868, only two days before the limitation lapsed. It was not, therefore, in time, and the Circuit Court properly overruled the application. It may be further observed that the statute makes no provision for filing the petition with the clerk, as was done in this case, or with the judge in vacation. The statuté alone provides for an application to the court (§ 61), and that upon a previous notice of fifteen days. Had it been provided that the process might be initiated by filing the proper petition with the clerk within the two years, and for a notice to the opposite party fifteen days prior to the next succeeding regular session of the court, that might have better subserved the convenience of complaining parties, and quite effectually accomplished the general objects of the Legislature. The Legislature, however, did not so enact, and we are bound to take the law as we find it.

It is urged that the plaintiff in error waived all objection to the sufficiency of the notice because he appeared in court and agreed to submit the cause to the court, notwithstanding the disqualification of the judge holding it to sit in the cause. That was no waiver of notice; it was simply a waiver of objection to the judge who was to pass judicially upon the sufficiency of the notice. A waiver of objection to the judge was no waiver of objection to the sufficiency of the antecedent process. The only point that appears to have been specifically presented for the consideration of the Circuit Court, upon the motion to set aside the *262original judgment, related to the sealing of the attachment bond. The bond was expressed to 'be a sealed instrument, the word “ seal,” printed between brackets, thus : [seal], being employed in the sealing. The parties adopted that device as their seal or scroll, and that was sufficient.

The judgment of the District Court is reversed.

The other judges concur.