Payne v. O'Shea , 84 Mo. 129 ( 1884 )

Rat, J.

This case was tried and determined in the special law and equity court of Jackson county, upon a demurrer to the -petition which was in the nature of a bill in equity to enjoin and restrain defendants from enforcing a certain judgment, obtained by them, before a justice of the peace, and asking further for an accounting and settlement between the parties. The demurrer was sustained, and the bill dismissed, and in due time and manner the complainant, Payne, brought the case here by writ of error.

It seems that in 1874, complainant, Payne, had a ■contract for the purchase of an ice house and contents, situated in Jackson county, Missouri, with the defendant, Chas. O’Shea.' Thereafter, he was summoned as garnishee, and judgment, amounting in the aggregate to $100, obtained against him as such, in four several and separate actions, by various plaintiffs, against Chas. O’ Shea and said Thomas O’Shea individually. Thereafter, the said O’Sheas sued Payne before a justice of the peace, in the state of Kansas, by attaching certain ice in that state belonging to Payne, and finally obtained judgment therein in the district court of Kansas against Payne for $110. The cause of action, therein alleged, was an indebtedness of Payne to the O’ Sheas, as partners, for ice sold under said contract. Afterwards, in 1880, the O’ Sheas brought suit on said Kansas judgment before Allen, a justice of the peace in Kaw township, Jackson county, Missouri, and obtained a judgment thereon and took out execution thereunder. The defendant, Boothe, to whom said execution was directed as constable, levied the same upon the property specified. Thereupon, this complainant instituted the present injunction proceedings. Material parts of the bill and the fraudulent conduct of defendants, complained of in connection with these transactions and proceedings, will be noticed and considered in the further progress of this opinion.

In this state a proceeding in the nature of a bill in equity will lie to enjoin and avoid a domestic judgment obtained through fraud, and like remedies exist and may be resorted to against judgments obtained in other states, when sued on in this state. Freeman on Judg., sec. 561 : High on Inj. (2 Ed.) sec. 69. The fraud, however, for which a judgment will be enjoined must be in the procurement of the judgment. And courts of equity will not vacate or enjoin a judgment merely based upon a cause of action which may be vitiated by fraud, for this is a valid and meritorious defence, which may be interposed, and unless its interposition is prevented by fraud of an adversary, as was the case in Ward v. Quinlivin, 57 Mo. 426, it. cannot be asserted against a judgment, either foreign or domestic. Accident or mistake, we may add, unmixed with negligence, may also furnish, in proper cases, further ground for this relief. If we read and construe the allegations of the bill now before us correctly, the grounds of complaint are, that on the garnishment proceedings against Payne, in the several and separate causes of action against Chas. O’ Shea and Thomas O’ Shea individually, the O’ Sheas acted in such manner as to induce him to believe that they were not partners, which complainant says they were not in law or fact; and that thereafter, while they, as well as Payne, were citizens of Missouri, they began said attachment suit in Kansas, alleging falsely therein that they were partners, with the intention of thereby shutting out such legal and equitable set-offs, as he had acquired against them by virtue of payments made and liability incurred under said proceedings in garnishment. . As to whether the O’ Sheas were partners or not, the complainant, Payne, has been heard, or at least has had two opportunities to be heard in the trials before the justice in Kansas and in the district court of that state. And, even if we are to regard this matter as timely and proper at this stage of the proceedings, the facts averred in the bill do not strike us as sufficient to show that they pretended to a contrary capacity at the time of complainant’s answers as garnishee, or that they fraudulently induced or procured his answer therein to be made. It is alleged and admitted, that previous to the making thereof, Chas. O’Shea, with whom alone the ice contract had, in the first instance, been made, informed complainant that Thomas 0’ Shea was, also, interested with him in said ice contract and the contents thereof. The information thus given is not inconsistent with their subsequent action in suing as partners in said action in Kansas. It is entirely consistent and in harmony therewith. The fact that Chas. O’Shea was present and did not object to Payne’s answers is not, we think, significant of fraud or bad faith on his part. Por what reason or purpose should he object to Payne’s answers that Payne owed them about $262 on the ice account? Complainant says in his bill, he knows not whether he was liable under the law and facts to the O’Sheas severally on said judgment in garnishment or not; and it may well have been that O’ Shea was, at that time, laboring under a like doubt as to the law in that behalf and was silent, for that reason.

We do not see that there was, on the facts alleged, any fraud, accident, or mistake in fact, inducing Payne to make his said answers, or that the O’Sheas were responsible for the rendition of the judgments, whether the same are to be held valid, or irregular and unauthorized, and not binding upon the complainant, or not. And, further, if the O’Sheas were not partners, and falsely assumed to be such in Kansas, for the alleged purpose, the effect of this was simply to affect their cause of action there with that vice. But this does not affect the judgment with fraud, which was obtained upon a trial where both parties were present by attorneys and where the contention between them, among other things, must have been over these facts. The O’Sheas, at least, did not by fraud, or otherwise, prevent a hearing upon these matters in the Kansas courts, nor is it so averred or claimed. The complainant had the benefit of his set-offs arising under said judgments in garnishments on the trial, in the justice’s court in Kansas, where they were allowed, but was deprived thereof by the ruling in the district court, where they were held inadmissible, against the partnership demands of the O’ Sheas. Even if this ruling were incorrect, it would furnish no ground for the interference of a court of equity as the remedy for'the improper exclusion of evidence or defences, is to correct the same on appeal, which was not done by complainant. The same set-offs, etc., were again offered in evidence and excluded by the justice of the peace in Missouri in the suit on the Kansas judgment. The rule prevails in this state, that individual debts cannot be set-off against partnership accounts and demands, and we would now be. compelled to so hold, if the cause were now before us on appeal from the judgment of the justice in that behalf, instead of being here in its present form. Weil v. Jones, 70 Mo. 560; Lamb v. Brolaski, 38 Mo. 51. The plaintiff has had his day in court to interpose his said set-offs, defences, and counter-claims, and has not availed himself of his remedy to revise the decision thereon, either by appeal or otherwise, and whether the same was correct or not, the effect of injuring the judgment for that reason, would be, we think, simply to re-try the issue in equity, which is not allowable.

It is further contended by appellant, that the action of Allen, the justice in Missouri, in excluding the evidence offered to show the want of jurisdiction, and to contradict the Kansas judgment, was inequitable and improper. When a foreign judgment is sued on in this state, it is true the question of jurisdiction may be open to inquiry, in some instances and for some purposes. It has been held, for example, that a'recital of appearance therein may be contradicted, by showing the appearance was by an unauthorized attorney, and this is the ground upon which the decision in Lager ». Stover, 59-Mo. 87, was placed. In the case before us, however, the fact of defendants’ appearance by attorney is not disputed, nor is it averred that said attorney was not authorized.to appear and defend the action in complainant’s behalf. That complainant was a non-resident of Kansas is immaterial, if he authorized said attorney to appear for him, for in that event he would be bound by a judgment otherwise properly rendered against him. The O’ Sheas, although citizens of Missouri, as alleged, could institute in person or by attorney, proceedings by attachment in the foreign jurisdiction where they found property of their debtor, and they would, also, become liable for any judgment against them therein. The allegations in the bill that complainant was never served with summons or process is, also, immaterial, and for a similar reason, because it is clear, as we think, that complainant has submitted himself to the jurisdiction of the Kansas courts, and this appearance and submission of his person, and taking the chances of verdicts and judgments in his favor there, are now binding upon him.

It is, also, further contended that, as plaintiff was, never served with summons or other legal process, the judgment of the Kansas district court, on appeal from the justice’s court in the attachment suit, being a general one instead of one in rem, was unauthorized and void. Both in Kansas and Missouri proceedings in the nature of judgments in rem do not generally create any personal liability, but operate on the property attached, and are not generally considered to constitute, at least beyond the state where rendered, a cause of action against the defendant therein. Freeman on Judg., sec. 436; Kane v. Kook, 8 Cal. 449; Banta v. Wood, 32 Iowa 473. The doctrine is maintained in cases where there is no summons and no personal appearance by the parties, and where the jurisdiction acquired has been wholly obtained by the constructive service of the attachment. Apart from the jurisdictional inquiries, the question before us as to the Kansas judgment is, what is its effect in Kansas, for this is the effect to which, under the constitution of the Union, it is entitled in this state. If valid there, it is valid here, aside, at least, from questions of fraud in its procurement, and it is void here, or merely irregular and voidable here, as it may be the one or the obher in that state. In the case now under consideration, we do not understand that the seizure of the property in the attachment is used as a service of process on the defendant, so as to authorize a personal judgment in said cause; but, that said judgment, if otherwise not invalid, is based in that behalf upon the jurisdiction acquired by the voluntary appearance of the defendant therein.

The Kansas judgment set out in .plaintiff’s bill is a general one for the recovery of $105, the amount of the verdict and for costs, upon which execution therefor is ordered to issue. Such a judgment is, we think, not void, and if irregular, erroneous, and voidable, this was error appearing on the face of the proceedings and record, which the court would have corrected on application and motion of the party, or which could have been revised on appeal. In this state a judgment in attachment against a defendant who has’ appeared to the action, should be a general one, and not a special one against the attached property. Borum v. Reed, 73 Mo. 461; Krilzer v. Smith, 21 Mo. 296; Jones v. Hart, 60 Mo. 351.

As to the matters alleged, as to the defendant, Boothe, and the levies made by him as constable, it may be proper and sufficient for us to say that, while such officers may generally exercise their judgment and discretion as to the sufficiency of their levies, yet they may be held liable upon their bond, or otherwise, for unfairness and unreasonable excess, as well as for any other oppressive conduct or abuse of power. In this case, the property seized by the officer was retained by the defendant under a forthcoming bond, and while the amount of property, if we accept its value as alleged, seems large, we presume only enough is intended to be sold to satisfy the execution, and for any wrongful or oppressive acts in this particular plaintiff is not without adequate remedy at law. Some of the matters complained of are not harmful or prejudicial to the defendants, such as, the levy on property or interests not belonging to the defendants. If the officer has seized on property not subject to such executions, this affects the validity of said levy as to such property only.

Upon consideration of the whole case, we are not prepared to say that the trial court erred in sustaining-said demurrer and dismissing the bill, and its judgment is, therefore, affirmed.

All concur, except Sherwood, J.} who expresses no opinion.