Summary
In Jones v. Overall, 223 Mo.App. 266, 13 S.W.2d 581, we upheld the action of the trial court in dismissing a bill in equity to enjoin the enforcement of an execution, upon the ground that these sections provide an ample remedy at law for staying, setting aside or quashing an execution.
Summary of this case from State v. BrackmanOpinion
Opinion filed February 5, 1929.
1. — Justices of the Peace — Process — Special Constables — Return — Not Conclusive. Where a justice of the peace, under section 2747, Revised Statutes 1919, appoints a private person as a special deputy constable for the service of a summons, such person is not regarded as an officer of the law, but as the agent, the representative pro hac vice, of the party at whose instance and risk he is appointed, and the return of such person is not conclusive, but merely prima-facie evidence of the facts of service therein set out.
2. — Executions — Justices of the Peace — Process — Served by Special Constable — Default Judgment — Transcript Filed in Circuit Court — Return of Service Open to Attack by Motion to Quash Execution. Where a suit was filed in the justice court and a special deputy constable appointed by the justice to serve summons issued therein and such special deputy made a return of service and thereupon the justice of the peace rendered judgment against defendant by default, and thereafter plaintiff filed a transcript of such default judgment with the clerk of the circuit court and had execution issued thereon, held under section 1675, Revised Statutes 1919, relating to proceedings to set aside or quash executions, the return of such special deputy was open to attack by a motion to quash such execution.
3. — Equity — Executions — Suit to Vacate Judgment and Enjoin Execution — Adequate Remedy at Law — Bill Properly Dismissed. In a suit in equity to vacate, set aside and declare null and void a judgment theretofore rendered by default by a justice of the peace and to restrain defendant from enforcing an execution issued on said judgment out of the circuit court, a transcript of such judgment having been previously filed in the office of the circuit clerk, on the ground that the return of a private person appointed by the justice as special deputy constable under section 2747, Revised Statutes 1919, was false, held that inasmuch as section 1675, Revised Statutes 1919, provided the plaintiff a full, complete and adequate remedy at law for staying, setting aside or quashing such execution, the action of the trial court in dismissing plaintiff's bill in equity was proper.
Appeal from the Circuit Court of the City of St. Louis. — Hon. Moses N. Hartmann, Judge.
AFFIRMED.
Hill England for appellant.
(1) A court of equity has ample power to relieve against a judgment procured by fraud, and all of the proceedings concerning the procurement of such judgment are proper matters of inquiry. Goldie Construction Co. v. Rich Construction Co., 112 Mo. App. 147; Steyermark v. Landau et al., 121 Mo. App. 402; Ryan v. Hughes, 197 Mo. App. 99; Sauer v. City of Kansas City, 69 Mo. 46. (2) The record upon its face shows that the alleged service of summons was by special deputy; hence the record entries do not preclude a showing of the falsity of such alleged return of service. Stegall v. American Pigment Chemical Co., 150 Mo. App. 251. (3) It is always competent, where fraud is charged in the procurement of a judgment, and a meritorious defense is alleged as in the instant case, to receive testimony in support thereof. Goldie Construction Co. v. Rich Construction Co., supra. (4) The special deputy was not an officer within the meaning of the law and therefore the return of said special deputy was not conclusive; and is subject to attack in equity. Stegall v. American Pigment Chemical Co., supra; Walker v. Robbins, 14 How. 584; Smoot v. Judd, 184 Mo. 508.
Verne R.C. Lacy and M.G. Baron for respondents.
(1) There was an adequate remedy at law for appellant, if he were aggrieved or injured by the execution, through a motion to quash the execution, under our statutes, and, even after sale under the execution, by replevin from the purchaser. Secs. 1675 and 1676, R.S. 1919; Wallace Sons Mfg. Co. v. Hagood Mfg. Co., 189 S.W., l.c. 32; Butler Bros. v. Cantwell et al., 287 S.W. 794; St. L. S. F. Ry. Co. v. Lowder, 39 S.W., l.c. 800-801; 138 Mo. 533; Farris v. Smithpeter, 166 S.W. 655, l.c. 656-657; Mo., etc., Ry. Co. v. Hoereth, 45 S.W., l.c. 1087-1088; 144 Mo. 136; White v. Henderson, 265 S.W. 991. (2) Where there is an adequate remedy at law, equity will not intervene and, it appearing upon the face of the petition, respondents' demurrer should have been sustained. See cases cited, supra. (3) The appellant Jones, the plaintiff in the circuit court, is without legal right to raise any issue concerning the validity of the judgment in the justice court, except as to question the actual fact of the actual service of summons upon him by said process server, which fact is determinable, if at all, by either of the legal remedies of a motion to quash or a proceeding to replevin from the purchaser at the execution sale. See cases cited, supra. (4) It is not competent to show that Jones was never served with summons after plaintiff had proved by the records and proceedings of the justice court that he was served. This was an effort to impeach the testimony which had already been offered by the plaintiff. State Bank v. Peck, 159 Mo. App. 171, 140 S.W. 762. (5) The circuit court is without jurisdiction to inquire, sitting as a court of equity, into the merits of the controversy, and is without jurisdiction to determine the issues decided by the justice of the peace, except on an appeal from his judgment. See cases cited, supra.
Plaintiff filed his suit in the circuit court of the city of St. Louis in equity, to vacate, set aside and declare null and void a judgment theretofore rendered by default by a justice of the peace in one of the districts of the city of St. Louis, and to enjoin and restrain the defendant, respondent here, from enforcing an execution issued on said judgment. On a hearing of the case the court dismissed plaintiff's bill and plaintiff in due course appeals.
It appears that on the 13th day of September, 1926, the defendant, William Overall, caused to be filed before a justice of the peace in the city of St. Louis his cause of action purporting to be based upon a negotiable promissory note in the sum of one hundred dollars with interest thereon; that one Archie Ewing, under section 2747, Revised Statutes of Missouri, 1919, was appointed special deputy by the justice for the service of the summons in said suit, and that the said Ewing made return upon the summons that he had served the same upon this plaintiff, the defendant in said suit in the said justice court, by delivering to him a true copy thereof. In due course the justice rendered a judgment in said cause by default in favor of plaintiff, William Overall, therein, and against I.L. Jones, the defendant therein. A transcript of said judgment was filed with the clerk of the circuit court of the city of St. Louis, and the defendant, Overall, thereafter had execution issued thereon, and the sheriff levied upon personal property belonging to the judgment debtor, Jones. Thereupon Jones filed his bill in equity setting up facts herein above set out, and stating further in his petition that he was never at any time served personally or otherwise by summons is said action before the justice of the peace, "and that the purported service thereon by said special deputy, Archie Ewing, is false and that this plaintiff never at any time had any notice of said action until the sheriff, as aforesaid, took charge of plaintiff's assets, property and effects, pursuant to the execution as aforesaid; that this plaintiff was never at any time indebted to said defendant, William Overall, and never at any time executed in favor of said defendant the note purported to have been executed by plaintiff and being the alleged subject of the action before the said justice of the peace aforesaid. . . . Plaintiff further avers that by reason of the transcript of said judgment being filed in the circuit court he has no remedy in the premises except in a court of equity, and that defendant, Overall, is insolvent, and prays that a temporary restraining order be issued against the defendants prohibiting them from in any manner enforcing said judgment by reason of the aforesaid execution and that upon final hearing of the cause the judgment be vacated and be declared null and void and of no effect."
The return to the order to show cause alleged that plaintiff's petition does not state facts sufficient to constitute a cause of action against the defendant, nor does it state facts sufficient to state a cause of action in equity; that it appears on the face of the petition that the trial court, sitting as a court of equity, is without jurisdiction over the subject-matter of this suit for the reason that plaintiff has a full, complete, and adequate remedy at law. The return further contains a general denial and sets up that plaintiff's remedy is at law under the provisions of section 1675, et seq., Revised Statutes of Missouri, 1919, which provides a statutory mode of proceeding to set aside or quash an execution issued out of the circuit court, as well as the further legal remedy of replevin proceeding against any purchaser at the execution sale, and that the trial court, sitting as a court of equity, is without jurisdiction to inquire into the merits of the controversy in the justice court and can only do so as a court of law upon an appeal from the justice of the peace upon the merits of the case.
The action of the trial court must be sustained, it appearing from plaintiff's petition that he has, under the facts alleged, an adequate remedy at law.
It has been squarely held that where a justice of the peace, under section 2747, Revised Statutes of Missouri, 1919, appoints a private person as a special deputy for the service of a summons, such person is not regarded as an officer of the law, but as the agent, the representative pro hac vice, of the party at whose instance and risk he is appointed, and that the return of such person is not conclusive but is merely prima-facie evidence of the facts of service therein set out (Stegall v. Amer. Pigment Chemical Co., 150 Mo. App. 251, 130 S.W. 991; and cases therein cited), and that under section 1675, Revised Statutes of Missouri, 1919, relating to proceedings to set aside or quash executions (which provides that any person against whose property any execution shall be issued, may apply by petition, verified by oath, to any judge of the court out of which the execution may have been issued, setting forth good cause why same ought to be stayed, set aside, or quashed, giving reasonable notice of such intended application to the opposing party, and that thereupon such judge shall hear the complaint), the return of such person is open to attack by a motion to quash.
This section of our statutes provides the plaintiff a full, complete and adequate remedy at law for staying, setting aside or quashing the execution issued out of the circuit court, the enforcement of which plaintiff seeks to enjoin in his equity proceeding herein. [St. Louis San Francisco Ry. Co. v. Lowder, 138 Mo. 533, 39 S.W. 799, l.c. 800-1; N.E. Wallace Sons Mfg. Co. v. Hagood Mfg. Co. (Mo. App.), 189 S.W. 32; Stegall v. American Pigment Chemical Co., supra; Butler Bros. v. Cantwell et al. (Mo. App.), 287 S.W. 794.]
Holding as we do that plaintiff had an ample and adequate remedy at law, we hold that the action of the trial court in dismissing plaintiff's bill in equity was proper and the judgment is affirmed. Nipper, J., concurs; Haid, P.J., not sitting.