Mullins v. Rieger

ROBINSON, J. — This is an action in two counts. The purposes of the first count are to have the court declare void — 525 — a judgment against plaintiff in a prior proceeding, -wherein he was named as one of the defendants, and to have set aside and for naught held a sheriff’s deed to certain lands therein named, made by the sheriff at a sale under an execution issued upon said alleged void judgment, and to have removed the cloud cast upon the title of plaintiff’s land by said sheriff’s deed. The second count is in ejectment for the possession of' the land named in said sheriff’s deed. In the first count of plaintiff’s petition is set out file-names of all the parties plaintiff and defendant in the proceeding which resulted in the judgment against him, and which, by this proceeding, is sought to be annulled, and who of the-defendants were served and who not served. It is also alleged that no process in that action was ever issued for this plaintiff, and that none was ever served upon him, and that he did not. enter his appearance therein either in person or by attorney, and that no answer was filed therein by him or on his behalf; that in said action against himself and others an answer was filed in behalf of some of the defendants, but that he did not authorize the filing of same, nor did he employ the attorney for that purpose, nor did said attorneys intend, by filing of said answer, to enter the appearance of this plaintiff or plead for him in said action, and did not in fact enter his appearance or make a plea in his behalf. The petition also- contained an averment to the effect that as soon as plaintiff learned of the sale of his land and its purchase by the defendant herein, he offered to refund to him the sum of fifty dollars (the amount paid by defendant for the property at execution sale) and any additional sum by way of expenses that he might have been to in the premises, and that the. defendant refused to accept same, but asserted that. he was the owner of the property and entitled to its use and enjoyment and refused to recognize plaintiff’s claim thereto. ' A renewal of the tender of the money in court was also made by plaintiff. — 526 — The answer of the defendant in this suit joins issue with the plaintiff in all these averments o£ fact, and states that on September 21, 1895, he purchased the real estate mentioned in plaintiff’s petition at sheriff’s sale for the price of fifty dollars, which he paid to the sheriff and took a deed therefor. Defendant further avers that at the time he purchased said real estate and paid his money to the sheriff and took the sheriff’s deed for the land, he had no notice whatever of the alleged claim that plaintiff now sets up, and had no reason to believe or suspect that plaintiff had any claim or equity whatsoever, but verily believes that the sheriff in offering said property for sale had the legal and equitable right to sell and convey said real estate to the purchaser who might at said sheriff’s sale buy said land; that said sale was in all respects conducted according to- law, and was fair and open; that in all respects, defendant relied upon the judgment of the circuit court of Jackson county, under which the sheriff’s sale of the land was made, and that he acted in the utmost good faith without any notice whatever of the plaintiff’s alleged right and without any intention on his part to- defraud the plaintiff herein. At the trial, the- plaintiff in this action testified that he knew nothing of the- proceedings against himself and others that resulted in the judgment under which his land was sold, and knew nothing of the sale of his land until just a short time before the institution of this suit two years and more after the sale had been made-; that he was never served with process in the case of John Keenan v. William C. Mullins and others, that he never appeared therein and filed answer and that he never authorized or employed any one else to appear for him or file an answer in his behalf in that case. The attorney who prepared and filed the answer in that ease also testified that he had no -authority to file an answer for this plaintiff in that suit, and that he- did not undertake to file one for him, and did not. so file an answer for plaintiff. — 527 — The record in the case of Keenan v. Mullins and others was also offered in evidence. On the back of the summons issued in that case, the following return of service by the sheriff was made: “Executed this writ in Jackson county, Missouri, on the 22d day of December, 1891, by delivering a copy of this writ, together with a copy of the petition hereunto attached, to the within named defendant, R. H. Hamilton, he being’ the first defendant served. And further executed this writ on the same day by delivering a copy of this writ to the within named defendant, J. R. Hannan. And further executed this writ on the.....day of December, 1891, by making diligent search for but failed to find the within named defendant John R. Mullins. “Wm, S. Situington, Sheriff. “T. H. Gattnu, D. S.” The answer filed in that case was also offered in evidence, and is in the following language:' “In the Circuit Court, April Term, 1893. “State of Missouri, Jackson County, ss. “John Keenan vs. “William C. Mullins. “Now comes the defendant and for answer to the petition of plaintiff herein says: They allege that the cost bond referred to in plaintiff’s petition was signed by him or by his attorney; they admit that they are taking steps to enforce the collection of the costs adjudged against plaintiff as surety on said bond. “They deny each and every allegation in the petition not herein expressly admitted. Wherefore, defendants pray that said injunction be dissolved^ said suit dismissed, and that — 528 — such other orders be made in the premises as the court may deem just and proper, and for costs. “Eyice & Hamilton, “Attorneys for Defendants.” No other process was ever issued in the case, except the original summons, on the bach of which appeared the return quoted above. Upon this showing of facts the court entered the following judgment: “Tuesday, April 10, 1894. “John Keenan, Plaintiff, v. “Wm. C. Mullins, John R. Mullins, R. H. Hamilton and J. R. Hannon, Defendants. “Now comes the parties hereto by their respective attorneys, and all and singular the matters herein being heard and considered, the court does find the issues herein in favor of the plaintiff and that plaintiff is entitled to the relief prayed for. “Thereupon in open court come defendants R. H. Hamilton and John R. Hannon, and enter their disclaimer herein. Thereupon it is considered, ordered and adjudged that the temporary- injunction herein be made perpetual. That the judgment heretofore rendered by the circuit court of Jackson county, Missouri, at Kansas City, in case number 8221, wherein John Crane and others were plaintiffs and the defendants herein were defendants, be, in so far as such judgment adjudges the plaintiff herein with the payment of the costs of that action, decreed null and void and be set aside, and that defendants, their agents and attorneys, be perpetually enjoined from attempting to enforce such portion of that judgment, “It is further considered, ordered and adjudged, that plaintiff have and. recover of defendants William 0. Mullins — 529 — and John R. Mullins, his costs in this behalf, laid out and expended and have execution therefor.” It was under an execution issued upon this judgment that appellant’s property was sold and’ purchased by the respondent in this case. At the conclusion of the testimony in the present case the plaintiff prayed the court to. give a peremptory instruction in his behalf, and defendant on his part requested a like instruction in his behalf. The court refused plaintiff’s and gave defendant’s instruction, and the case was brought here by plaintiff, as appellant. From the record before us we think the discussion on this appeal has taken a much wider range than the situation calls for. We have been favored with the most interesting and elaborate arguments, with citations of numerous authorities in support thereof upon the question as to the effect of an unauthorized appearance by an attorney for a defendant against whom a judgment had been rendered, but in our opinion that question is' of little, or no concern to the disposition of the case now before us. Notwithstanding the recitation in the judgment, “Now come the parties hereto by their respective attorneys, and all and singular the matters herein being heard and considered,” etc., etc., when the entire court roll is examined, it is readily seen that this recitation is erroneous; that in fact, no appearance was made nor attempted to be made by anyone, purporting to act as the attorneys for the plaintiff herein, in the suit of John Keenan v. William Mullins and others, wherein the judgment against this plaintiff (who was one of the defendants in that suit) was rendered and under which judgment defendant’s land was sold. The court roll shows that the firm of attorneys, Fyke & Hamilton, did at the April term, 1893, of the Jackson Circuit Court, file the answer copied above, for the defendant in the suit of John Keenan vs. William C. Mullins et al., who were served with process, but that answer nowhere purports to be for and in be — 530 — half of this plaintiff, as one of the defendants in that suit, but merely for the defendants without naming them. Both this plaintiff and the attorney who filed the answer in the case of John Keenan v. William C. Mullins et al. testified that this plaintiff never in fact appeared in that suit, as one of the defendants, and that he never filed an answer, nor did he in fact authorize an answer to- be filed for or in his behalf. This testimony was not denied by anyone. The court roll in the case of John Keenan v. William C. Mullins et al. disclosed the further fact (as appears from the return of the sheriff upon the summons issued in that case) that the defendants Hamilton and Hannon alone were served, and that after diligent search made, the sheriff failed to find the within-named defendant, John R. Mullins (the plaintiff in this action) in. his county. This brings us then to the consideration of the question, as to who in a general recitation in a judgment,-as in this case-, “Now comes the parties hereto by their respective attorneys,” etc., etc., is to be comprehended, when upon the face of the return on the summons in the case, all the defendants named in the suit-had not been served with process. Respondent contends that this general recital of the defendant’s appearance in the judgment, must be held and treated as conclusive evidence of that fact, and that in this independent collateral proceeding, its verity can not be questioned to discredit the force of the judgment as made and entered therein. Appellant upon the- other hand contends that this recital in the judgment is to be considered more as a formula adopted by the clerk in writing up the judgment, than as a solemn finding by the court upon that fact, in view of the positive showing of the court roll that this plaintiff, John R. Mullins, in that suit did not in fact appear; that the recital in the judgment, “Now come tire parties hereto by their respective ’attorneys,” etc., etc., should be interpreted to mean that only those parties appeared and filed answers who — 531 — had been brought into court by its process duly served upon them. As said above, the court’s jurisdiction of the defendant John R. Mullins in the case of John Keenan v. William C. Mullins et al. was not had by service of process upon him. The return upon the summons shows that fact; and if jurisdiction was ever acquired to authorize the judgment rendered, it must have been by the answer filed in that case by the attorneys, Eyke & Hamilton, who alone filed an answer for anyone. When we look to the answer there filed, we see that it is not an answer by Eyke & Hamilton, for the defendant, John R. Mullins, entering his voluntary appearance to make answer to the charges and allegations of plaintiff’s petition in a suit in which he had not been served with process; but it was an answer for the defendants without naming them, which could not mean more than those defendants who had been duly brought into court, and who were required to make answer by reason of the court’s authority over then on account of the court’s process served (and of these John R. Mullins was not one). Without a special entry of appearance in the suit, by John R. Mullins in person or by attorney, in that he was not served with the court’s process, the court had no authority over him, and the mere erroneous or false recitation in the judgment, that he did so appear, would not give to the court an authority, which before the assertion it did not possess, or invest it with jurisdiction to render a valid judgment against the defendant, John R. Mullins, which, without the existence of the fact recited,, it was wanting in authority to do. Nothing can be more illogical or wanting in judicial force, than the contention made by the respondent and supported seemingly by some judicial dicta, that a judgment against a party under which his property has been sold, must be held and treated as an indisputable record on the question of his appéarance in the case wherein the judgment sought — 532 — to be annulled was rendered because tbe judgment in that case recites tbe fact tbat tbe defendant did so appear, and in tbe next place says tbat tbe judgment is an indisputable record because he did appear. Marcy, J., in Starbuck v. Murray, 5 Wend. 148, to illustrate and at the same time to emphasize tbe unreasonableness of such a position, thus states tbe rule: “Tbe appearance makes tbe record indisputable verity and tbe record makes tbe appearance an indisputable fact,” which is sophistry complete, and if indulged in, makes a judgment a judicial web into which if by chance a citizen falls, be is inextricable, bis constitutional right to a day in court to tbe contrary notwithstanding’. Or, stated otherwise, tbe position of respondent resolves itself to this: The court creates a defendant’s day in court, by tbe mere recital of tbe fact in its record, and tbe recited fact becomes an indisputable verity because it is tbe record of a court. . Such reasoning ignores tbe foundation upon which rests tbe right in any court to render a binding judgment against tbe citizen where his rights or bis property is to be affected. Defendant must have bad bis day in court, tbat a valid and binding judgment against him may be entered, and maintained,' notwithstanding the presumptions to be indulged in favor of tbe verity of judgments. The doctrine of absolute verity of a record can not apply where tbe want of jurisdiction of tbe court making tbe record sought to be annulled is tbe very question put in issue by tbe proceedings, and this is none tbe less true, because, as-in this case, tbe plaintiff has joined in bis petition to annul a judgment and to set aside a sale of land made thereunder a count in ejectment for tbe possession of tbe land sold under said erroneous judgment, in tbe consideration of tbe issues under which last count standing alone the absolute verity of tbe judgment in question might not properly be assailed,, according to tbe authorities cited. — 533 — If the court bad no jurisdiction over this plaintiff (the defendant in the suit of Keenan v. Mullins et al.) it had no power to make the record as set out in the judgment under which plaintiff’s land was sold, -and the proposed record is not in truth and fact an absolute verity as against the plaintiff in the present proceeding; and further, it is not necessary that the allegations of a petition, seeking to have declared void, set aside, annulled, or for naught held, a judgment so entered against a defendant, where he was neither ■served with notice of the suit against himself, and where notwithstanding 'the want of legal notice he neither appeared nor authorized the entry of his appearance therein, charge that the recitals of appearance in the judgment was corruptly or fraudulently induced or made, as contended for herein. Eor though the clerk may not have fraudulently made the entry in the judgment reciting the appearance of the defendant by his attorneys, in the sense that he intended the commission •of a willful wrong, yet if he did it mistakenly (as was evidently done in the case in question, by treating the answer that was filed for the defendants without naming them, to include •all defendants named in the petition, instead of the answer for those only who were in court by reason of its process duly •served upon them, and of whom answers were required) the effect is the same to a defendant who is threatened with the loss- of his property by the existence of the false recital Though fraud in direct terms is not charged against anyone in the procurement of tire judgment 'sought to be declared void by this proceeding, the facts and circumstances under which the judgment was entered are set out in the first count ■of plaintiff’s petition, and those facts constitute ample warrant for the equitable intervention of the court, to set aside, ■declare void, or in anywise to stay the force of the judgment ■so entered, regardless of the reason that may have prompted the untrue recital found therein, and without regard to the ■question whether or not actual intentional fraud was charged — 534 — to anyone in procuring or causing tbe untrue recital to' be so made. In view of tbe general practice by our circuit courts to permit the clerks thereof to make up tbe formal recitations set out in their judgments, such as, who of tbe parties to a suit were served with process, and who of tbe parties have made bis or their voluntary appearance thereto, from tbe papers in the clerk’s custody, and tbe court’s acceptance of such recitals so made up by tbe clerk, as tbe fact appearing from tbe court roll without a- personal examination of tbe roll itself by the court,-it would be most dangerous to say, that a record thus m-ade up showing that due notice bad been given to a defendant of tbe commencement of an action against himself or that be bad appeared by attorney and filed an answer therein, should be held conclusive against an offer to show a contrary state of facts, either by the court roll itself, or by facts independent of tbe court roll. Recognizing the general presumption to be indulged in favor of a judgment of a court of general jurisdiction, where its jurisdiction over the parties to, and of tbe cause in which it has acted is not questioned, still that presumption is of no avail as an absolute conclusion, against a party offering in an independent proceeding, to show facts and circumstances which go to tbe impeachment of the court’s assumed and presumed jurisdiction in tbe particular case assailed, either by tbe court roll itself or by facts aliunde tbe roll. In tbe consideration of this case respondent has failed to note' the distinction between those cases having under consideration a false recital of a jurisdictional fact in a judgment record, and those having for determination tbe question of an erroneous or false adjudgment of a fact or1 facts in tbe case by the court. The latter in tbe very nature of things is and must be held not only presumptively true, but must be conclusively so — 535 — beld and treated at all times (except on appeal), otherwise there would be no final settlement of disputed controversies. As said, the case before us now for determination, does not involve the consideration of the validity ‘of a judgment, where the parties have once been before the court, or the rights of a third party who has purchased property on the strength thereof that was entered against a defendant upon a false or mistaken return, showing that the defendant had been properly brought before the court; nor does it involve the validity of a judgment entered against a defendant upon an appearance by an unauthorized attorney, nor are' we called upon to consider a case where a defendant’s appearance has been procured or induced by some fraudulent practice or deception, which gave to the court the appearance of jurisdiction to render the judgment entered, but the facts before us present a case wherein the recitals in the judgment as to the appearance of the defendant in the proceedings wherein the judgment was rendered, is wholly without support from'the court roll or elsewhere; and further where it is manifest at a glance, that the record made was the result of a mistaken interpretation of the meaning of an answer that had been filed for and in behalf of other defendants in the case, but of which,this plaintiff (as defendant in that suit) knew nothing, and in which proceeding he took no part whatever. Nor is the point made by appellant here that the attorneys Eyke & Hamilton might not have appeared for him and filed an answer in his behalf in the case of Keenan vs. Wm. C. McMullins et al., that would have bound him although no service of process was ever had upon him therein; but the contention is that neither they as attorneys or otherwise did appear for him in the suit of Keenan against others and himself, nor did they attempt or pretend to do so, to furnish a pretense of jurisdiction over the person of this plaintiff to justify the judgment rendered against him, and under which his property was sold to the defendant herein. — 536 — The trial court beard tbe testimony of tbe plaintiff to the effect tbat be bad never authorized tbe attorneys, Eyke & Hamilton, to appear for him and file an answer in bis behalf in tbe case of Keenan v. Wm. C. Mullins et al. Also, that of tbe attorney Eyke who did file tbe answer for other defendants in that case, to the effect that neither be nor tbe firm of Eyke & Hamilton, of which be was a member, was authorized to file an answer for or in behalf of tbe appellant herein, and further tbat be did not file an answer for this appellant, in tbat case, nor did he attempt to do so; and yet after bearing such testimony, subject as it was to tbe objection made against it by respondent, it was stricken out by tbe court on tbe grounds that it was incompetent as impeaching testimony against the recitations of tbe judgment in controversy. In this tbe trial court committed error. Tbe doctrine of absolute verity of a record does not apply when tbe want of jurisdiction in tbe court to make the record assailed is the very question in issue to be determined. The judgment of tbe tidal court is reversed and tbe cause remanded to be retried in accordance with tbe views expressed herein. Brace, P. J., and Marshall and VaUi/Mit, JJ., concur.