167 Mo. 537 | Mo. | 1902
This is a bill in equity to set aside a judgment, upon an attachment, of the Cass Circuit Court, in favor of Scofield and against the plaintiff, rendered on September 14, 1894, and also to set aside the Sheriff’s deed under said judgment, dated January 22,1895, to George B. Strother, and also a quitclaim deed from Strother to John Scott, for a part of the land, dated January 24, 1895, and also a deed from Strother and Scott to D. M. Colburn, for the entire tract, dated January 25, 1895-. The circuit court entered judgment for the defendants, and the plaintiff appealed to this court, where, on April 17, 1899, the plaintiff-appellant, dismissed his appeal, and on the same day he sued out this writ of error.
The defendants move to dismiss the writ of error on the ground that it was not sued out within three years after the rendition of the judgment in the circuit court as required by section 2275, Revised Statutes 1889, the statute in force when this writ was sued out. The judgment of the circuit court was rendered on February 4, 1896. The plaintiff, within proper time, filed a motion for a new trial, which was continued from time to time and finally overruled on May 5, 1896. As stated, this writ of error was sued out on April 17, 1899. This was within three years from the date on which the motion for new trial was overruled, but was more than three years after the date on which the judgment was rendered. The point presented for adjudication, therefore, is, which date is the date of the rendition of the judgment ?
The defendants rely upon the case of Ham v. Public Schools, 34 Mo. l. c. 182, where Bates, J., said. “We think that the time within which the writ of error may be brought should date from the day of the rendering of the judgment, without regard to the motion for a new trial.” Bat, J., concurred, in this view, and Drxden, J., dissented. The St. Louis Court of Appeals followed this ruling in Bank v. Reilly, 8 Mo. App. 544.
But this view did not long remain the law of this State, for in Riddelsbarger v. McDaniel, 38 Mo. 139, the court, speaking through Wagner, J., held that if a motion for a new trial was filed, the whole matter remained in the breast of the court so long as the motion for new trial was pending, and carried the whole case over from term to term until the motion for new trial was acted upon, and that “until that result is reached, it can not be said that the cause is finally determined.” In Thomas v. Thomas, 64 Mo. 354, a writ of error was dismissed on the ground that it was prematurely sued out, in that it did not appear that the motion for new trial
The principle that until the motion for new trial is disposed of, the whole matter remains in the breast of the court, and, hence, there is no final judgment, was recognized and enforced by Sherwood, J., in McGurry v. Wall, 122 Mo. l. c. 619. The most striking illustration of the rule is found in St. Francis Mill Co. v. Sugg, 142 Mo. 364, where the motion for new trial was not disposed of for fourteen years after it was filed, and this court, per Barclay, J., held that it kept the whole matter in the breast of the court during all that time, and until it was disposed of there was no final determination of the cause.
In Scott v. Scott, 44 Mo. App. l. c. 603, Ham v. Public Schools, 34 Mo. 181, was relied on, aiid the Kansas City Court of Appeals refused to follow it, holding properly that it was in conflict with the later case of Thomas v. Thomas, 64 Mo. 353. That court per Ellison, J,, aptly and forcibly said: “Technically and properly, the judgment of the court after its decision, or after verdict, should not be rendered until after the
In addition to these cases and these considerations there is another most important reason for holding that the date of the overruling of the motion for new trial must be taken as the date of the rendition of the judgment. Section 2248, Revised Statutes 1889, provides: “No such appeal shall be allowed unless: First, it be made during the term at which the judgment or decision appealed from was rendered,” etc. It is the settled law in this State that, except as to errors apparent on the face of the record proper, this court will not review errors of the trial court unless the error is called to the attention of the trial court by a motion for a new trial and the trial court thus given an opportunity to correct its error. [Pogue v. State, 13 Mo. 444; Howell v. Pitman, 5 Mo. 246; Warner v. Morin, 13 Mo. 455; St. Louis v. Brooks, 107 Mo. 380; Bevin v. Powell, 83 Mo. 365; State ex rel. v. Hitchcock, 86 Mo. 231; Baker v. Railroad, 107 Mo. 230; State ex rel. v. Burckhartt, 83 Mo. 430; Donaldson v. Thompson, 120 Mo. 152.] This being true, if the appeal must be taken before the motion for new trial is overruled, the appeal would be unavailing, for this court would not review the action of the trial court, that court not having had a chance to correct its own
It follows from what has been said that the case of Ham v. Public Schools, 34 Mo. 181, has been practically overruled
II.
The facts necessary to be considered in the determination of this case, briefly stated, are these: Jacob Walter is, and at all the times hereinafter stated was, a resident of the State of Pennsylvania. His son Lloyd S. Walter resided in Kansas City. Lloyd held a power of attorney from his father to transact his business in Missouri. Lloyd had invested money for his father (and also for his sister) in land in Missouri, but took the title in his own name. About 1890 Lloyd determined to leave Kansas City and move to Texas. Before leaving he executed and recorded a deed to his father, covering land in Kansas City and the land in Cass county involved in this controversy. He also conveyed land in Kansas City, Missouri, and in Kansas City, Kansas, to -his sister. This was intended to convey to each the land Lloyd had purchased for them -with their respective money, the title to which he had taken in his own name. The father did not know for some time afterwards that this had been done. Lloyd then moved to Texas. At the time he made these conveyances Lloyd was indebted to various persons, among them to one Mitchell, in the sum of $2,300. Lloyd returned to Kansas City, in 1892, and Mitchell sued him and obtained a judgment against him. Hnder that judgment Mitchell caused an execution to be levied upon the land Lloyd had conveyed to his father, the plaintiff, had it sold and became the purchaser at the sheriff’s sale. After-
Scofield was, at that time, attorney for a man named Thomas C. Davenport, and also for a woman named Alice A. Eish, who were respectively seeking divorces in the courts of Jackson county. Scofield claims that he needed some money and to raise it he offered to sell his judgment, in attachment, against the plaintiff to Davenport. The latter had no money, but Mrs. Eish had, and it is claimed that she purchased Scofield’s said judgment, paying therefor $866. Mrs. Eish said she gave Davenport that amount “to invest in a farm” for her. It was agreed between Scofield and Davenport that Scofield should attend to the collection of the judgment, and that they two would divide all that was realized therefrom over and above the amount Mrs. Eish had put into the venture. Scofield had an execution issued and the land advertised. The sale was set for January 22, 1895. Scofield and Davenport went from Kansas City to ILarrisonville, Cass county, to attend the sale. George B. Strother, another defendant herein, an attorney, lived on the land adjoining the Walter land, was employed by one McMannus, who had purchased from Walter a portion of the land levied upon under the writ of attachment to attend the sale and notify bidders that McMannus claimed to 'own said part. Strother told John Scott, another defendant herein, that the Walter’s farm was to be sold and proposed to Scott that they buy it. Scott agreed, and authorized Strother to buy it if it did not sell for more than thirty dollars
Davenport and Scofield divided the profits, over the amount due Mrs. Eish, between them, amounting to some $104.85 to each. Davenport and Mrs. Eish obtained their desired divorces, entered into a new marital venture with each other, and left the State.
Strother made a quitclaim deed to a half interest to Scott and on January 24, 1895, Strother and Scott executed a quitclaim deed to the whole tract to D. M. Colburn, another defendant herein, for an alleged consideration of $3,822. But Colburn paid no money. He gave his note for that amount payable “one day or when the title is clear on the Walter farm after date.” In fact it is conceded that Colburn has never paid anything. There was a deed of trust for $3,000 on the land. So that if the sale to Colburn represented the true value of the land, it Avas worth $6,322. The land comprises some one hundred and fifty-four acres, and is variously A^alued, by the Avitnesses, at from $45 to $J5 an acre. During all this time neither the plaintiff, Jacob Walter, nor his son Lloyd, nor his tenant in possession of the land, Yantis, knew anything about the attachment suit or of the proceedings therein. They first learned of it when a Mr. Huber, a resi
The circuit court of Cass county never acquired jurisdiction in the attachment case,,-and its judgment is therefore void. This being true the sheriff’s deed conveyed no title to Strother, and he having no title, conveyed none to Scott, and Colburn acquired no title from Strother and Scott.
Section 543, Eevised Statutes 1889, prescribes the manner of serving writs of attachment. The third paragraph of that section provides the manner of levying a writ of attachment upon lands or tenements. It requires the officer levying the writ to state in his return the quantity and situation of the laud and to declare that he has attached all the right, title and interest of the defendant in the same or so much thereof as shall be sufficient to satisfy the debt, interest and costs. It also requires the officer to file in the recorder’s office of the county where the real estate is situated an abstract of the attachment, showing the names of the parties to the suit, the amount of the suit, the date of the levy, and a description of the real estate levied upon, which abstract the recorder is required to record in the land records, the officer making the abstract to pay the cost of such recording. Then it further provides, in addition to all the foregoing, as follows: “And the officer shall moreover give notice to the actual tenants, if any, at least ten days before the return day of the writ, and state
At the time the attachment writ was levied in this case, S. A. Tantis was the tenant of the plaintiff, Jacob Walter, of the land seized, and was in the actual possession thereof. The sheriff gave him no notice whatever. The sheriff’s return upon the attachment writ shows that he complied with the requirements of the third paragraph of section 543, except that he did not give the notice therein required, and that he did not state in his return the fact of such notice and the names of the tenants. The sheriff’s return showed that the defendant in the attachment suit, Jacob Walter, who is the plaintiff in this suit, was not served because he could not be found in Cass county. And the record in the attachment suit, which was introduced in evidence in this case, shows that the defendant, Jacob Walter, was brought in only by publication.
The provisions of section 543, Revised Statutes 1889, above quoted, requiring notice to the tenant in possession and the recital of notice in the sheriff’s return has long been in the statutes of this State. It was exactly the same in 1856, when the case of Lackey v. Seibert, 23 Mo. 85, was decided (R. S. 1845, ch. 11, art. 1, sec. 12). In that case Leonard, J., said: “It is objected, however, that in order to render the attachment complete, so as to create the lien, it is not enough that the levy be indorsed on the writ, but that it is also necessary that notice of the attachment should be given to the actual tenant, if any, ten days before the return day, and that this fact, together with the name of the tenant, should be stated in the officer’s return. It is to be observed that this notice is not requisite to be given at the time the attachment is levied, and does not seem to be part of the ceremony required to constitute a levy of the attachment, and adopted in order to give public notice of the fact, but was intended for the benefit of the debtor, by providing another security, where the proceeding might be without personal notice, against his
To fully appreciate the force and extent of the foregoing excerpt from the opinion in that case it must be stated that at that time the statute was the same as paragraph three of section 543, Eevised Statutes 1889, except that it did not require an abstract of the attachment to be filed in the recorder’s office; and further that in the case then undergoing adjudication the fact was that the defendant had been personally served with process and was in court actively defending the case, and that he contended that under the statute it was necessary to serve the tenant, even in cases where the defendant, the owner, had been personally served. When this is understood, the remark of the learned judge who delivered the opinion in that case, that “in cases like the preseht,” such a construction, that is, requiring notice to the tenant in addition to personal service upon the defendant, would be “a mere formal matter, without substance,” “would not be for the interest, generally, of either debtor or creditor,” becomes, at once, of material significance, and decisive importance, and plainly demonstrates the force of what preceded that remark, that the object of the statute “was intended for the benefit of the debtor, by providing another security, where the proceeding might be without personal notice, against his land being taken from him by a judicial proceeding, of which he had no notice in fact.” Or, otherwise stated, the clear meaning of that opinion is that the statute required the notice to the tenant in all cases except when the owner was personally served with process, and that it did not
There can be no doubt about the correctness of Judge Leonard's opinion in the case cited, nor of the correctness of his conclusion under the facts of that case. He gave full force and a sensible meaning to the provision of the statute quoted. It is surprising, therefore, that his decision should have been since so misunderstood and misapplied. The question came before this court in 1866, in the case of Durossett’s Admr. v. Hale, 38 Mo. 346. In that case the defendant’s property had been attached. The defendant was not personally served with process, as in the Lackey case, but was sought to be brought in by constructive notice, by publication. The publication only notified the defendant that an action had been commenced against him for damages for the destruction of property, and that if he did not appear at the next term of the court, a judgment would be rendered against him and his property would be sold. Nothing was said in the publication, as the statute required, to the effect “that his property had been attached.” It was properly held that the notice by publication was fatally defective and the judgment based thereon was void. But after thus sufficiently disposing of the case the judge delivering the opinion fell into the unnecessary error of adding the following: “Another objection was, that the 'sheriff’s return did not show a valid levy on the real estate, for the reason that it did not state that notice had been given to the tenants in occupation of the premises ten days before the return thereof, nor give any reason why it was not done. It would no doubt be entirely proper that the return in such cases should state these things distinctly; but it has already been decided that the giving of such notice constitutes no essential part of the levy itself, which is not required to be made at the same time, ánd that a sheriff’s sale of the real estate
Several errors are apparent in this decision. Eirst. It refers to Lackey v. Seibert, supra, as authority, when, in fact, Lackey v. Seibert holds exactly the reverse. It fails to comprehend the reason given in Lackey v. Seibert for holding a notice to the tenant unnecessary, to wit, that the owner had been personally served and was in court actively defending the case, whereas in the Durossett case, the owner was not personally served, was not in court, and judgment by default had been rendered, upon an insufficient notice by publication. Second. It totally misconceives the object of the statute, in that it confuses the question of the validity of the lien, with the question of whether the court acquired jurisdiction to render any judgment. The portion of the section of the statute under consideration does not refer to liens at all. It prescribes “the manner of serving writs of attachment.” Unless the writ is served in the manner prescribed, the court acquires no jurisdiction to render any judgment except in cases like Lackey v. Seibert where the defendant is personally served. The question is one of jurisdiction and not one of lien. Third. The reasoning employed in the Durossett case, that because the notice to the tenant is not required to be served at the same time that the attachment is levied, and therefore that provision of the statute must be wholly ignored and read out of the law, is fallacious. As was pointed out in Lackey v. Seibert, supra, the reason underlying this provision of the statute is to give the owner, the defendant in the .attachment, notice through his tenant in possession, when the owner is not personally notified, so that his land will not be taken by judicial process without notice. It is an additional notice to the notice by publication, and manifestly it is a better and surer way of notifying the owner than the notice by publication. It is analo
However, the Durossett case .and the Lackey case have since been referred to as settling the construction to be put upon this provision of the statute. [Huxley v. Harrold, 62 Mo. l. c. 520; Stanton v. Boschert, 104 Mo. l. c. 399.] And Lackey v. Seibert, was referred to in Bryant v. Duffy, 128 Mo. l. c. 22, as authority for the proposition that the failure of the sheriff to file the abstract of the attachment in the recorder’s office vitiated the attachment, although it will be ob
But an examination of these cases that have referred to the Durossett case, without analyzing it, shows that a consideration of this provision of the statute, requiring notice to the tenant when the owner was not personally served with process, was not necessary to a decision of those cases, or was not involved in these cases. In Huxley v. Harrold, 62 Mo. l. c. 520, after citing both Lackey v. Seibert, and Durossett’s Admr. v. Hale, and upon their faith holding that the validity of a lien in attachment was not affected by the failure to give the notice to the tenant in possession, it is said: “As Hartzell [who was the defendant in the attachment case] if not served with personal process, appeared to and defended the action, a general judgment was the only one authorized by the statute. [Wagner’s Stat., p. 189, sec. 40.] In consequence of this statutory requirement, it is wholly unnecessary for the judgment to recite any attachment lien in order to impart additional efficacy to that lien.” This is the real point decided, and properly decided in that ease, and is in consonance with the ruling and the reason given for the ruling in Lackey v. Seibert, because in both eases the defendant personally appeared and defended the attachment ease, but is wholly unlike the Durossett case, where there was only a notice by fatally defective publication.
Stanton v. Boschert, 104 Mo. 393, involved only a question of priority of attachment lien between two attaching creditors, one having begun his suit first, and the other having caused the abstract of the attachment to be filed in the recorder’s office first. No right of the defendant was involved, for it is stated (l. c. 397) that the defendant appeared, pleaded in abatement and contested all the attachments. In the course of the opinion, however, Lackey v. Seibert, Durossett’s Admr. v. Hale, and Huxley v. Harrold are referred to (without
The result is that Lackey v. Seibert, correctly stated the law, and it has ever since been the law in this State, and that so much of Durossett’s Admr. v. Hale, 38 Mo. l. c. 348, as misapplies the rule laid down in Lackey v. Seibert, never was and is not now the law, and that case is no authority for the proposition that the provisions of section 543, Revised Statutes 1889, requiring notice to be served on the tenant in possession and such fact to be stated in the sheriff’s return, in all cases except when the defendant is served personally or when he appears to the action, can be ignored or dispensed with, but on the contrary such notice, and recital in the return, except in the cases stated, is indispensable to the jurisdiction of the court to enter any judgment, based upon an attachment levied upon lands or tenements.
The reason for not requiring the notice to be served on the tenant when the owner is personally served or appears and defends the action becomes apparent upon the slightest reflection. In suits by attachment, the property or res is brought into court. The notice by publication or to the tenant is simply a notice to the defendant that his property has been seized, and is not a summons bringing the defendant into court. If the defendant fails to appear the court can only render a
It follows that in the case at bar the circuit court of Cass county never acquired jurisdiction to enter any judgment in the attachment case of Scofield v. Walter, and, hence, the
This conclusion renders it unnecessary to consider the questions of fraud in this case, but silence in this regard must not be construed into sanction of the course adopted by Seofield in the attachment proceeding, nor as holding that the titles acquired under that proceeding could be held valid.
The judgment of the circuit court is reversed and the cause remanded to the circuit court with directions to enter a decree setting aside the judgment, the sale and all the deeds thereunder to Strother, to Scott and to Oolburn, and for costs in favor of the plaintiff herein and against all the.defendants except the sheriff, who is not a necessary party to this action and has no interest in the matter.