Roberts v. Stone

SMITH, P. J. This is a suit in equity to obtain an injunction against the defendants to restrain the sale of real estate under an execution. The material facts to be gathered from the record may be grouped in about this way, that is to say, the plaintiffs G. G. Roberts and Minnie C. Roberts, by the name of M. C. Roberts, executed their note, the latter as surety for the former, to the defendant Stone for two hundred dollars which they neglected to pay at maturity, so that an action was brought against them by [429] the payee Stone in the circuit court of Livingston county to recover the amount due thereon. At the time of the commencement of the action the payee resided in Livingston county and one of the makers, Gr. Gr. Roberts, resided in Carroll county while the other, Minnie C. Roberts, resided in Caldwell county. The return of the sheriff on the writ of summons shows that the service thereof on the last-named defendant was in Livingston county by the delivery to her of a certified copy of the petition and writ. And it further appears from the return made on the writ by the sheriff of Carroll county that the defendant Gf. Gf. Roberts was served in that county, at a date subsequent' to the service on his co-defendant, by the delivery to him of a certified copy of the petition and writ. At the retqrn term of the writ neither of the defendants appearing, judgment by default was given against them for the amount due on the note. Subsequently, a writ of execution was issued on the judgment directed to the sheriff of Livingston county which was levied on certain real estate in which the defendants had, since the rendition of the judgment, by descent acquired an interest. Defendants, after the acquisition of the interest in the said real estate and prior to the execution levy, conveyed that interest by deed to a brother, A. Gf. Roberts. This suit was brought by the said A. Gf. Roberts and the two judgment defendants against the judgment plaintiff and the sheriff, the object of which was as stated at the outset. • The plaintiffs’ petition alleged, inter alia, that the writ of summons in the action on the promissory note aforesaid was never served on the defendants, or either of them; that the return of service indorsed on said writs was false, and that the court in which the judgment was given was without jurisdiction of the person of the defendants' therein, or either of them; that the defendants therein had a meritorious defense to said action in that said note therein sued on was without any [430] supporting consideration and was given to avoid a threatened criminal prosecution, etc. The answer was a general denial. There was a hearing of the case by the court resulting in a decree setting aside the temporary injunction which had been previously granted and a dismissal of the petition. The plaintiffs appealed. The vital question presented is, whether or not the service of the original process in the action herein-before referred to was- sufficient under the statute-section 562, Revised Statutes —, to confer jurisdiction of the person of each of the judgment defendants 1 and according to the ruling of the Supreme Court in Christian v. William, 111 Mo. 436, it was as to- Minnie C. Roberts, but not as to G. G. Roberts. It results from this that the said judgment is valid as to the former and invalid as to the latter, and that therefore the decree in the present case must be affirmed as to such former defendant, Minnie C. Roberts, and reversed and cause remanded as to such latter defendant, G. G. Roberts. All concur.