Downing v. Still

Bliss, Judge, delivered the opinion of the court. The plaintiff, as assignee of the mortgagee, brought suit of foreclosure, January 16, 1864, in the Putnam County Circuit Court, against Thatcher and wife, upon a certain mortgage executed by them to his assignor. Defendants were non-residents, and by order of the clerk notice was published, and in September, 1864, the death of defendant Thatcher was suggested and the cause continued. At the March term, 1865, defendant Still appeared and entered his appearance upon the record, and the cause was entered as continued, but at the same term an interlocutory judgment was entered by default, and at the next September term a final judgment was taken for $5,455.96, and the mort — 316 — gaged property ordered to be sold, and the balance, if any, to be collected out of the estate of Thatcher. The right and title of defendant Still in the mortgaged property was levied on by the sheriff, on the 20th of March, 1866, and sold to defendant Hiram Phillips for $106. At the March term, 1867, the plaintiff filed his notice to set aside the judgment and the sale for various reasons. He urges certain irregularities in the publication of notice to defendants Thatcher and wife; that an interlocutory judgment was taken against them after the death of Thatcher ; that his administrator entered his voluntary appearance, and was not made a party by process or order of court; that after such appearance, and entry upon the record of a continuance of the cause, and without setting aside the entry, and without setting aside the first interlocutory judgment, at the same term another interlocutory judgment was entered against the administrator and against the wife of Thatcher by default, and that the final judgment and execution were informal. Plaintiff also makes grave charges not shown by the original record, of conspiracy by the parties to the sale to obtain the mortgaged property for a nominal sum; that a false appearance was entered for him in the case ; that aiter the suggestion of the death of Thatcher neither he nor his attorney knew anything of the proceedings until after the sale and return; and supports the charges by affidavits. The defendants objected to the motion because it was out of timo — that no motion should be entertained to set aside or correct a judgment except at the term where it is rendered, and no motion to set aside a sale except at the term when the sale is made. It is well settled that in general a court will not correct or set aside its judgments except at the term when they are rendered. (Ashby v. Glasgow, 7 Mo. 320 ; Hill v. City of St. Louis, 20 Mo. 584; Harbor et al. v. Pacific R.R. Co., 32 Mo. 423 ; Brown v. Dinwiddie, 25 Mo. 351.) But a judgment may be set aside for irregularity sit any subsequent term within three years from its rendition. This power was recognized by the court in several of the cases above cited, and is recognized in section 26, chapter 172, of the General Statutes, limiting the time for prosecuting the motion. — 317 — The right to vacate judgments and proceedings for irregularities is nowhere disputed. ( Tidd’s Pr., passim.) This record shows many irregularities, as well as errors and informalities. Defendants Thatcher and wife were non-residents of the State, and an attempt was made to bring them into court by published notice. But the record shows that the newspaper in which the notice was published was not the one in which it was ordered by the clerk, or at least was described by a different name, and that the first publication was before the order of the clerk. An interlocutory judgment was taken against Thatcher and wife at the term they were ordered to appear, and there is proof in support of the motion, though not on the original record, that when this judgment was taken Thatcher was dead. At a subsequent term the plaintiff suggested the death of Thatcher, and the cause was again continued. At the next term an order was made reviving the, action as against defendant Still, as administrator of Thatcher, and he entered his voluntary appearance, and an entry of continuance was made upon the record ; but afterward, at the same term, without notice sp far as appears, and without setting aside the order of -continuance, another interlocutory judgment by default was rendered against Still and Mrs. Thatcher, and the cause continued. At the next term, being the September term, 1865, final judgment was rendered upon default. A special execution was issued commanding a sale of the property, and that the balance after sale be made out of the property of Daniel Thatcher and Sarah his wife. The sheriff returns that he has sold the right, title, and interest of defendant Still and Sarah A. Thatcher in the mortgaged property to defendant Phillips ior the nominal sum of ¡jj>106, and that he finds no other property belonging to them. It is seldom we see a record so full of irregularities. They are prominent in every stage of the proceedings — from the original publication of notice, to the sheriff’s return upon final execution, wherein he reports a sale of the interest of Still, who had no interest, and that of Mrs, Thatcher, who was never properly brought into court. An irregularity maybe defined to be “the want of adherence to some prescribed rule or mode of proceed — 318 — ings. ” It is often, waived by the subsequent action of a party, as by an appearance after defective process, so that the judgment would be valid notwithstanding such defect. But this record shows no such valid judgment, and the proceedings of the sheriff upon the execution are worse than the judgment. It is true, his return of those proceedings might be amended were there anything to amend by, but we must presume the return of sale corresponded with the advertisement, and it could not be amended” to contradict it. But can the plaintiff take advantage of those irregularities ? It was the duty of the administrator to have applied to have the proceedings set aside, to protect the estate from an apparent sacrifice of the property, and see that it paid as much as possible of the debt. But he does not move in the premises, and it is claimed that the plaintiff cannot — that the proceedings are his own, and that he is bound by them. If one suffer by a judgment, he may reverse it upon writ of error for errors of the court, although rendered in his own favor, as if for a less sum than he is entitled to. (Burr. 1772 ; Tidd’s Pr. 113-1.) In Capron v. Van Noorden, 2 Cranch, 126, the Supreme Court of the United States, on application of a person who obtained a judgment, reversed it, on the ground that the court had no jurisdiction. The only injury, it would seem, he could suffer from it, was its invalidity; that he could not enforce it against the will of the judgment debtor, and still that it might be a bar to a new one. There are errors enough in the record before us to demand the reversal of the judgment had the case been brought here by writ of error. A party who is injured by a judgment is entitled to the relief the law gives. Whether the form of the judgment be for him or against him, matters not. If he suffers, he should be relieved unless precluded by some just rule, and is entitled to his relief by the usual modes. The usual proceeding against irregularities is by motion. When such motion will lie, a party should not be driven to a higher court, but the tribunal where the wrong was done should furnish the relief. There is no reason in denying the ordinary remedy, and driving one who suffers from a judgment — 319 — to a writ of error, because tbe judgment is in his favor. Here were irregularities as well as errors, which not only greatly impair the value of the judgment, but render it worthless. Mrs. Thatcher was never in court; and though the administrator of her husband entered his appearance on behalf of his decedent, the default entered against him after the continuance of the cause was a gross departure Norn all' rule. Hid it appear that this advantage was sought by the plaintiff, that the judgment was rendered at his instance, with knowledge of the continuance, he should, perhaps, in punishment for the fraud, be left to make what he could out of his invalid judgment. But this does not so clearly appear as to subject him to that penalty, especially as he rebuts the presumption of the record against him by the charge of false appearance, to be hereafter considered. I have spoken of the irregularities of the sale. Even if the proceedings in obtaining judgment were regular, or, being irregular, it were held that the plaintiff could not disturb them, this sale should be set aside. The irregularity was alone on the part of the sheriff; and the plaintiff, either in fact or by presumption of the- record, had nothing to do with it. The misconduct or mistakes of the sheriff should not be permitted to prejudice’ the rights of either party. The plaintiff is injured by an apparent satisfaction of the judgment, through a sort of sale which would cast a cloud over the title acquired by a new one, and render the property less likely to sell for a fair price. The question of fraud is also raised by the motion. The charge is made that all the proceedings after the suggestion of the death of Thatcher — to-wit: the appearance of Still, the entry of judgment, the issuing of the execution, the sale and the return — were without the knowledge of the plaintiff or his attorney, and were a conspiracy to defraud him of his security. The charge is sustained by affidavits, except as to the conspiracy. The proceedings complained of were without the knowledge of those interested in seeing that they were regular. This matter should have been considered below. The objection that it can only he inquired into upon petition in the nature of a bill in e'quity is not well taken. Though fraud and mistake are often — 320 — grounds for relief, yet the proper proceeding in a matter of this ki,nd is by motion. In Delancey v. Brownells, 4 Johns. 136, the Supreme Court sustained a motion to set aside a judgment by default, rendered at a previous term, on the ground of fraud. In Denton v. Noyes, 6 Johns. 295, the same court permitted a defendant, against whom judgment by confession had been rendered by an attorney, to open it upon motion at a subsequent term and make defense, though the judgment was regular upon its face, and upon the ground that the attorney had no authority to appear. In giving the opinion, Justice Kent remarks: “If the attorney has acted without authority, the defendant has his remedy against him ; but the judgment is still regular, and the appearance entered by the attorney without warrant is a good appearance as to the court. * * This rule of law, though perfectly well settled, would sometimes be unjust in its operation if it was not so restrained as to save the party who may be affected by it from injury. It was therefore wisely laid doAvn by the King’s Bench, in the time of Lord Holt, that if the attorney for the defendant be not responsible or perfectly competent to answer to his assumed client, they would relieve the party against the judgment, for otherwise a defendant may be undone. I am willing to go further, and in every such case to let the defendant in to a defense to the suit.” In Critchfield v. Porter, 3 Ohio, 518, the court sustained a demurrer to a petition in chancery to enjoin a judgment obtained against the petitioner, in consequence of an appearance being made for him by an attorney through mistake, and held that the petitioner had a complete remedy at law, upon motion to set aside the judgment. In McKee v. Bank of Mt. Pleasant, 7 Ohio, second part, 175, the Supreme Court refer to and affirm the doctrine of the above case. In Hunt v. Yeatman, 3 Ohio 16, the court sustained a motion below to set aside a judgment rendered at a previous term, though the grounds for setting it aside do not appear. See also, Warren & Dutton v. Rusk, 16 Mo. 102. Judge Scott, on page — 321 — 114, recognizes this remedy. So also does Judge Washington, in Fields v. Gibbs, 1 Pet. C. C. 155. If a 'party against whom judgment has been rendered, in consequence of the unauthorized appearance of an attorney, may have the same set aside on motion, on what principle will the same relief be denied to a party in whose favor a voluntary judgment has been entered, but so loosely and irregularly as to defraud him of his rights? True, the plaintiff was negligent, grossly so. But this was not the penalty. The court should have dismissed his case, and let him commence again, if he chose to do so. (Nordmanser v. Hitchcock, 40 Mo. 178.) Objection is made to the motion to set aside the sale also upon the ground that it was out of time; that it should have been made at the return term of the execution; and Nelson v. Brown, 23 Mo. 13, is cited. Judge Scott, in that case, announces the doctrine, though it was hardly necessary to the determination of the cause before the court, that the proceedings of the sheriff upon sale can only be set aside upon motion made at the return term of the writ, or at the term when the writ was actually returned. He would apply this rule only where the objection was on matters in pais and did not appear upon the record or return. This position in general is a reasonable one. If a party, properly in court, and when he has knowledge of the process, desires to set aside an execution or sale, for errors or causes not appearing of record, he must act at once. After rights of third parties may have intervened— after, by his silence, he has suffered the officer to deed to the purchaser — his acquiescence is presumed. But as to every thing shown by the record, the purchaser buys with notice. If ' the proceedings in obtaining the judgment or in effecting the sale be irregular, he knows it. Nor does the reason of the requirement exist where there is no actual appearance of the party, and where the proceedings are without his knowledge — as where some one acted for him without authority. However, in the New York and Ohio authorities before cited no such promptness is required. The District Court erred in not reversing the judgment of the Circuit Court, and its judgment is reversed and the cause remanded for further proceedings in accordance with this opinion. The other judges concur.