Huttig-McDermid Pearl Button Co. v. Springfield Shirt Co.

NIXON, P. J.' (after stating the facts). — The one paramount and burning question in this case is whether — 380 — the trial court bad jurisdiction at its September term, 1908, to render judgment against O1. T. Hamlin and John Kelley, tbe sureties on tbe replevin bond. At no place in tbe record does it appear that any process was served upon tbe sureties requiring them to appear, nor does it appear that any notice was served on them that tbe motion to correct tbe judgment nunc pro tunc bad been set for bearing or requiring them to appear or that either of tbe sureties entered an appearance at tbe bearing of tbe motion. If, therefore, tbe court bad jurisdiction over tbe sureties to enter tbe nunc pro tunc judgment against them, it must have acquired such jurisdiction at tbe time tbe case was beard before tbe referee, unless it shall appear that tbe said Hamlin and Kelley were sureties on a statutory replev-in bond and not on a common law bond. If, in the consideration of this case, tbe conclusion is reached that tbe replevin bond was not a statutory bond but. a common law bond, then tbe numerous other questions that have been argued by learned counsel need not be considered. Section 4464 of tbe Revised Statutes of 1899, chapter 56, concerning replevin, provides that upon filing tbe affidavit by tbe plaintiff set out in section 4463, idem, tbe court, judge or clerk in vacation shall make an order requiring tbe defendant to deliver tbe property specified in the affidavit to tbe sheriff, and requiring the sheriff, if tbe sama be not delivered to him, to take tbe same from the defendant and deliver it to tbe plaintiff. Tbe next succeeding section — 4465—provides that tbe sheriff shall not receive or take such property until tbe plaintiff should deliver to him a bond executed by two or more sufficient sureties, tbe same to be approved by tbe sheriff. An examination of tbe text of tbe bond set forth in tbe statement herein will show that it conforms to tbe standard forms of replevin bonds in use in this State; that is, tbe conditions are those that are provided for in — 381 — the statutes. Section 4474, idem, provides that on the contingency that the plaintiff fails to prosecute his action with effect and without delay and shall have the property in his possession, and defendant in his answer claims the same and demands return thereof — which are the conceded facts in this case — then a judgment shall be entered against the plaintiff and his sureties that he return the property taken or pay the value so assessed at the election of the defendant, and pay the damages assessed for the taking and detention of the property and costs of suit. Undoubtedly, section 4474, in authorizing a judgment against plaintiff and his sureties, without process, refers to a bond taken in accordance with the preceding section in the same chapter — section 4465— and the replevin bond authorizing a summary judgment by the court without process or notice as provided in this last section refers to the statutory bond which shall have been delivered to and approved by the sheriff as is specifically provided for in section 4465. The question then recurs, was the replevin bond of appellant herein such a bond as is provided for in this section and was it delivered to and approved by the sheriff? The rule is well established in this State by many authorities that a statutory bond not duly executed or not conditioned as required by law may yet be sustained as a common-law bond. [State ex rel. v. O'Gorman, 75 Mo. 370; State ex rel. v. Sappington, 67 Mo. 529; Waterman v. Frank, 21 Mo. 108.] It was held in the case of Wooldridge v. Quinn, 49 Mo. 425, that a bond given by the defendant in a replevin suit conditioned for the delivery of the property to the sheriff instead of to the plaintiff does not conform to the statutes and hence does not authorize a judgment under the statutes. In the present case, the following entry appears on the bond: “Approved this 21st day of December, 1906. T. A. Nicholson, Clerk, by S. A. Reed, D. C.” It appears from this that the cleric approved the bond and not — 382 — the sheriff as required by law. In. the case of State to use v. Finke, 66 Mo. App. 238, it was held that where the clerk of a circuit court who had taken an attachment bond and thereon issued the writ of attachment, he had no power to subsequently take another bond, even though the first one failed to contain a condition prescribed by the statute. But it is further held, that the latter bond, though not containing the indorsement or approval of the clerk, was valid as a common-law bond and might be enforced by proper process. Also, in the case of Williams v. Coleman, 49 Mo. 325, it is held that a bond given under the third provision of section 48 of the attachment act (Wagn. Stat. 191), if approved by the judge in vacation, may not be good under the statute, but is nevertheless a valid common-law bond. These authorities seem to establish the rule that a delivery to and approval of a replevin bond by the sheriff is necessary to constitute a statutory bond under the replevin act, and that a bond not in compliance with the statute will not authorize a summary judgment against the sureties. But the respondents in this case contend that in order to constitute an approval of the, sheriff of the re-plevin bond, it was not necessary for him to indorse his approval on the bond; that he, as a matter of fact, did receive the bond in question and seized the property under it and that we therefore have the right to presume that he discharged his official duty and properly approved the bond. We are cited to the case of The Whitman Agricultural Ass’n v. The National Ry., etc., Assn., 45 Mo. App. loc. cit. 93, 94, in support of this contention. That was an attachment bond on which the clerk did not indorse his approval. The opinion, however, recites that he did in fact receive the bond and issue the writ of attachment, and the case holds that the indorsement of approval on the bond is but evidence of approval and not the only evidence. This case is cited to support the contention that the sheriff’s approval of the — 383 — replevin bond should be presumed from the fact that he seized the property of plaintiff under it. That case will, however, on examination be found not to be applicable to this case. We are not left to rely upon any presumption in the case under consideration. It appears patent on the very face of the bond that the sheriff did not take or approve it, but that it was taken and approved by the circuit clerk who had no authority either to take or approve it under the statutes concerning re-plevin. If there had been no actual indorsement of approval by anyone, then the evidence of approval might be sustained by the presumption that the law attaches to the official acts of the sheriff. Presumptions have no place in the presence of actual facts. As was said in the case of Mockowik v. Kansas City, St. J. & C. B. R. Co., 196 Mo. 550, 94 S. W. 256: “Presumptions may be looked on as the bats of the law, flitting in the twilight but disappearing in the sunshine of actual facts.” The “sunshine of actual facts” as to the approval of this bond is written across its very face — “Approved this 21st day of December, 1906, T. A. Nicholson, Clerk, by S. A. Reed, D. C.” There is no room left for a presumption. Again, in order to maintain respondents’ contention, we have to base one presumption upon another. We have to presume in the first place that the replevin bond was delivered to the sheriff, and then we have to presume from that delivery and the sheriff’s official action, that he approved the bond. Presumptions must be based on facts, and one presumption cannot be based upon another. [16 Cyclopedia of Law and Procedure, 1051.] But it is further contended by respondents that O. T. Hamlin was attorney for the Huttig-McDermid Pearl Button Company and that he entered his appearance before the referee at or before the time when the referee recommended judgment against the button company and its sureties on the replevin bond. The only evidence we find in the record as to O. T. Hamlin being attorney for the button company is in the nunc pro tunc — 384 — judgment hereinbefore set forth, in which, after enumerating the property illegally taken under the writ of replevin, recites that all of said property was then in appellants’ possession “at the office of appellants’ attorney, O. T. Hamlin, Esq.” As the record fails to show that O. T. Hamlin was present at the time the nunc pro tunc judgment was entered, this recital certainly was not binding on him. As we have seen,'the report of the referee recommends judgment against the appellant, the Huttig-McDermid Pearl Button Company and its sureties; but so far as his report shows, the question as to whether the replevin bond was a statutory bond or a common-law bond was not determined by him in the presence of O. T. Hamlin. And even though the record were otherwise, the appearance before the referee of O. T. Hamlin as attorney for his client, The Huttig-McDermid Pearl Button. Company, and the defense of the proceedings against such client in objecting for his client to the jurisdiction of the referee to enter judgment against the sureties, would not, of itself, be such an appearance as to authorize the referee, on the strength of such appearance, without process, to enter judgment against O. T. Hamlin and John Kelley in case the replevin bond did not conform to the statute and was only a common law bond. The distinction has been long and uniformly made in this State between a general and a special appearance. The rule is that a general appearance waives the service of process and confers jurisdiction, while a special appearance or an appearance for a special purpose does not waive process. Where an appearance is made for the purpose of objecting to jurisdiction because of the absence of process, such appearance does not as a rule give the court jurisdiction of the person. [3 Cyclopedia of Law and Procedure, 527.] Though a party has appeared in court for one purpose, he may not be considered in court for any other purpose or for all purposes. [Anderson v. Brown, 9 Mo. 646.] — 385 — We therefore conclude on a survey of this case that the bond was not a statutory bond and that the referee had no authority to recommend a summary judgment against the sureties on the bond; and further, that the nunc pro tuno judgment entered by the circuit court upon the referee’s report giving judgment against the sureties on the bond was without jurisdiction. The judgment is accordingly reversed. All concur.