Branstetter v. Rives

Bay, Judge, delivered the opinion of the court. The respondent, Mary E. Branstetter, brought suit in the Ray Circuit Court against Benjamin A. Rives and C. A. Matldns, on a promissory note. The process was returnable to the March term, 1862, and was served on Rives by leaving a copy of the petition aud writ at his usual place of abode, with a white person of the family over the age of fifteen [321] years, on the fourth day of the term; and before the expiration of the time allowed by the statute to the defendants to appear and answer the petition, judgment was rendered against them. At the September term following, (Rives having in the meantime died,) John W. Shotwell, as admin istrator of Rives, filed a motion to set aside the judgment, for the reason that the suit being founded on a promissory note for the direct payment of money, and process not having been personally served, Rives was entitled to appear and answer on or before the sixth day of the term, and the judgment being rendered on the fourth day of the term was irregular, and out of proper time. In support of the motion, it was shown that the March term of the court lasted two weeks. The court overruled the motion, and the appellant duly excepted. On the same day the appellant filed a motion to set aside the finding of the court and for a new trial, which was also overruled, and the cause is brought here by appeal. The judgment in this case is not a void judgment, for the court had undoubted jurisdiction of the parties, as well as ■the subject matter of the suit; but it is an irregular judgment, entered in advance of the time provided by law. In 2 Tidd’s Prac. p. 512, an irregularity is defined to bo the want of adherence to some prescribed rule or mode of proceeding, and consists either in omitting to do something that is necessary for the due and orderly conducting of a suit, or doing it in an unseasonable time or improper manner, and in general is either in the mesne process or the proceedings thereon before judgment, or in the judgment or execution. In this case, when the judgment was entered the defendants had still two days in which to answer. It was a right conferred upon them by law, and of which the court could not divest them, if the term so long continued. One of the grounds taken here by the respondent is that the motion to set aside the judgment should have been made at the term at which the judgment was rendered; but there is no force in this objection, for by the 26th section of article 13 of the [322] Practice Act, three years is allowed to a party to move to- set aside a judgment of a court of record for irregularity. Another ground assumed by the respondent is that the motion should have been accompanied by an affidavit alleging a meritorious defence. In Chatty’s Practice, vol. 3, p. 543, it is stated that no affidavit of merits is required in support of a motion to set aside any proceeding for irregularity, if the ground of objection be clearly well founded. If the granting of the motion in this case rested solely in the discretion of the court, an affidavit of merits should have been required ; but we think no such discretion existed. The judgment was rendered out of time, and the defendant had a right for that reason alone to have it set aside. It was so ruled by this court in Doan v. Holly, 27 Mo. 256. The learned counsel for the respondent has called our attention- particularly to an early decision of this court—Payne v. Collier, reported in 6 Mo. 321 — in which Judge McGirk says, that a mere irregularity is not the subject of error ; but that case bears no analogy to this. Collier brought his action under the petition and summons act, which gave the defendant the first three days of the term in which to appear and plead. Payne appeared and moved to quash the writ fox* some supposed informality; and while said motion was pending, and after the time for pleading had expired, the plaintiff took judgment for want of a plea, and it was this supposed ix*regularity that the court had particularly in view. No motion was made to set aside the judgment, and no action taken to bring the matter to the attention of the court below. It was a mere question of practice, and, as far as we can learn from the report of the case, not governed by any statute or rule of court. The case at bar is very different. The time for pleading had not expired, and a motion to set aside the judgment was made in due time. The error of the court below consists in the decision of the court overruling the motion, and it is from this decision that the appeal is taken. The other judges concurring, the judgment will be re-vex'sed and the cause x'emanded.