Ryan v. Hughes

BECKER, J., (after stating the facts). — The evidence clearly shows that Margaret G. Ryan, the defendant in the cause before the justice, was a resident of the city of St. Louis at the time the cause was transferred by change of' venue to another justice, and that she was a resident. of the said city during all the time from that date to the date of the rendition of the judgment. The notice that the cause had been transferred by change of venue and had been set for hearing, and giying the date thereof, required by section 7483, Revised Statutes of Missouri, 1909, the compliance with which was relied upon as having been had by posting the notice in the office of the justice at 706 Chestnut street, was not warranted by virtue of the provisions of said section. Section 7483, supra, provides that— “The justice to whom the cause is sent shall, when he becomes possessed of the cause, forthwith proceed with the same in like manner as if it had been originally commenced with him, and he shall set the same for trial and cause the parties to be notified thereof, in writing, which notice shall be served upon the parties not less than five nor more than fifteen days before the date set for such trial. The notice may be served in like manner as an original writ of summons, and if any party does not reside in the county where the suit is pending the service upon such party may be had by posting such notice in the office of the justice to whom the cause is sent . . . The uncontradicted testimony shows that from the time of the filing of the original suit in the justice court and continuously until after the rendition of the judgment complained of, the defendant resided in the city of St. Louis. She was living at 2329 Eugenia street at the time the suit was instituted and service was had upon her there, and, after having taken the change of vé'nue, and some time in the early part of July, 1913, said defendant moved to 2749 Russell avenue, where she resided [109] continuously until after the 17th day of October, 1913, the date upon which the judgment was rendered. The justice issued and delivered to the constable for service, in all, four notices of change of venue, and the date set for the hearing of the cause. It is not necessary to quote the dates thereof, it is sufficient to note the constable’s returns thereon in their respective order: 1. “The within named defendant” does not live at the within given address any more-, has moved-on Russell avenue some place (not found).” 2. “Served the within notice in the city of St. Louis, Mo.j this 23rd day of August, 1913; after a diligent search the within named defendant not found in said city.” 3. “Served the within notice in the city of St. Louis, Mo., this 27th day of September, 1913; after a diligent search the within named defendant not found in said city. ’ ’ 4. ‘ ‘ Served the within notice in the city of St. Louis, Mo., this 7th day of October, 1913, by posting the within notice in the court room of Justice Frank M. Slater, 70G Chestnut street.” On the day set for the hearing of the case, as set forth in the last given notice, which was posted in the court room of the justice, the case was called on the 17th day of October, 1913, and a judgment by default was granted in favor of the plaintiff and against the defendant in the sum of $500, together with costs. It must be noted that the return of the constable necessarily relied upon by the plaintiff in the case before the justice as a compliance with section 7483, Revised Statutes of Missouri, 1909, does not state that the defendant does not reside in the county where the suit is pending — in this case, the city of St. Louis. The return of the constable to the first notice clearly .shows that the constable had found the plaintiff to have moved from Eugenia street to Russell avenue in the city of St. Louis, and the next two returns of the constable merely recite the fact that, after diligent search, the defendant was not found in the city of St. Louis. In view of these [110] returns, taken together with the undisputed testimony that the defendant during the entire time and for many years prior thereto, had been.a resident continuously of the city of St. Louis and had in point of fact moved from Eugenia street to Russell avenue, as was indicated by the constable’s first return, we must hold that there was no service of notice on the defendant as required by section 7483, Revised Statutes of Missouri, 1909, and, therefore, whilst the judgment thereafter rendered by the justice was not void, yet such judgment was premature. [Cullen v. Collison, 110 Mo. App. l. c. 177, 80 S. W. 290.] We are well aware of the rule of law that, “The return of the sheriff for the purposes of a suit is conclusive on the parties to it. . . . To permit the parties to an action to controvert the truth of the return of the officer deputed by law to serve process would produce great delay and embarrassment in the administration of justice.” [Hallowell v. Page, 24 Mo. l. c. 593; Newcomb v. Railroad, 182 Mo. l. c. 704, 81 S. W. 1069, and cases there cited.] And, “Even if the statements in his return are not true and the defendant suffers by reason thereof, the officer will answer in a suit against him for false return.” [Newcomb v. Railroad, supra.] But, in the instant case, it is not attempted to controvert the truth of the return of the constable, for the return itself in no wise states or even intimates that the defendant was a nonresident of the city of St. Louis. And as the defendant was, in point of fact, a resident of ■the city of St. Louis, the posting of the notice in the justice’s court was not warranted by the statute, which is an irregularity, as we have set out above, which makes the judgment thereafter rendered voidable. [Hess v. Fox, 140 Mo. App. l. c. 440, 124 S. W. 83.] The irregularity in the serving of the notice is sufficient to invoke the aid of a court of equity, provided that the defendant has a meritorious defense and that her failure to assert her defense at the trial was not the result of her own negligence. That this is the law has ■long since been determined in this State. [Hess v. Fox, [111] supra; Sauer v. City of Kansas, 69 Mo. 46; Goldie Const. Co. v. Rich Const. Co., 112 Mo. App. 46, 86 S. W. 587; Stevermark v. Landan, 121 Mo. App. 147, 99 S. W. 41.] The respondent, however, has argued that, even if the court should hold that the judgment was irregular in the manner above set out and, therefore, voidable, there was no showing that the defendant in the case, before the justice had a meritorious defense. This position is not tenable, for the reason that the statement filed. by the plaintiff before the justice can only be construed to be a demand for the sum of $300, when, in point of fact, the justice rendered a judgment therein in favor of the plaintiff and against the defendant in the sum of $500 and costs. This appears clearly from the statement filed in the justice court, as follows: “That in consequence of the injuries received by the plaintiff, as aforesaid, by the means aforesaid, and in the manner aforesaid, the plaintiff has sustained loss and permanent injuries ; suffered great pain both of body and mind; lost much valuable time and been put to great expense for medicine and has become liable for medical attendance in being treated for said injuries, to-wit, in the sum of $200, to her damage in the sum of $300, for which she sues and prays judgment.” It thus clearly appears that the defendant in the justice’s court in all events has a meritorious defense pro tanto, to the extent of $200, against the judgment as rendered by the justice, and we hold that this is a sufficient showing to satisfy the requirement that, before the defendant shall be entitled to invoke the aid of a court of equity, it must appear that she has a meritorious defense. The showing made satisfies the requirement that a court of equity should not be asked to do a useless thing. The evidence adduced at the trial in the circuit court is uneontradicted that the defendant in the justice case was waiting for a notice when the case would come up for hearing and that she had no knowledge of any setting of the case nor of any judgment rendered therein until a deputy sheriff served her with some paper, the exact nature of which is not disclosed by the.record, but from [112] which paper defendant learned, for the first time, that judgment had been rendered against her in the case before the justice. In view of all the facts, we cannot say that defendant’s failure to assert her defense at the trial before the justice -was the result of her own negligence. We have carefully examined the other points raised in the case, but we do not discuss them in that we' find they are not controlling. The judgment is accordingly reversed and the cause remanded, with directions tp the circuit court to enter a decree in plaintiff’s favor, setting aside the judgment of the justice of the peace and permanently enjoining plaintiff from attempting to enforce the same, in accordance with the prayer of plaintiffs petition. Reynolds, P. J., and Allen, J., concur.