State ex rel. Pemiscot County v. Scott ( 1890 )

Black, J.

— This is a suit brought by the county of Pemiscot on the official bond given by the defendant Scott, as collector of that county; the other twelve defendants are his sureties on the bond.

The county obtained judgment at the September term, 1884, of the circuit court, which was the return term of the writ. The judgment contains this recital: “ Now at this day come the parties by attorney, and by agreement and consent judgment is rendered against the defendants, in the sum of $1,536.21.”

Nothing further was done until ihe May term, 1885, at which time eleven of the defendant sureties filed a petition in the cause, called a “bill in review,” praying that the judgment be set aside and for leave to answer. This petition for review states that, while the judgment contains a recital that it was entered by the consent and agreement of the defendants, “in truth and in fact these sureties made no such agreement and gave no such consent as specified in such judgment;” that petitioners are advised the judgment should have been simply an interlocutory one at that, the return, term ; that the coroner’s service of summons is illegal in that it does not show which defendant was first served with a copy of the writ- and petition, and does not show that a copy of the writ-was delivered to a member of the family of one of the defendants, whose name is stated; and that they have a meritorious defense in this, that the county court, after the bond had been approved, and without their consent, released one of the sureties. The county filed, an answer, and the circuit court at the November term, 1885, set aside the judgment before entered, and gave defendants leave to answer, and accordingly they filed answer to the original petition.

A trial was had in July, 1886, which resulted in a. judgment for the defendants declaring the bond “utterly null, void and of no force and effect.” This judgment, or rather decree, is based upon a finding of the court, therein recited that the bond “was, after its approval, mutilated, defaced and tampered with by the fraudulent erasure of the name of William Wilks, who .had signed said bond, as one of the sureties.” The county, it seems, filed motions for new trial and in arrest in due time, which were overruled, but filed no bill of exceptions. The case is now before us on writ of error.

1. The petition for a review must have been filed and sustained on the supposition that section 3684, Revised Statutes, 1879, as amended in 1883 (Laws of 1883, p. 125), applies to cases like the one in hand. That section provides for a review, upon a petition filed for that purpose, where there has been a final judgment against a defendant, “whoshall not have been summoned, as-required by this chapter, or who shall not have appeared to the suit,” etc. The record before us does not contain-a copy of the return made by the coroner to the writ of summons, so that we have no means of knowing whether the return is good or bad. For all the purposes of this-case we shall assume that the service was and is defective. But the record shows that defendants appeared to the suit, and a petition for review cannot be sustained in any case where the defendant appeared, either in person or by attorney, no matter what may be the merits of his defense. Campbell v. Garton, 29 Mo. 343 ; Tennison v. Tennison, 49 Mo. 110.

The defendants, it is true, say in their petition for review, they did not consent or agree that the judgment should be rendered against them, but they do not dispute the fact that they appeared by attorney. The language used in their petition amounts to an admission that they did thus appear. The statute in question affords the defendant an opportunity to make defense where he has been served with constructive notice, as in ease of newspaper publication, and did not appear to the suit (Jones v. Driskill, 94 Mo. 190); and in such cases the judgment may be opened upon a proper showing, though the judgment and all prior proceedings are regular. But it was never the intention of the statute to substitute a petition for review for a motion to set aside a judgment for irregularity. No such motion was filed in this case, and the question whether such a motion should be sustained is not before us on this record. The petition for a review utterly fails to disclose a case entitling the petitioners to the relief awarded. Indeed, the facts stated show affirmatively that the petitioners were not entitled to have any relief under the section of the statutes before mentioned. And this we are able to say from the record proper. Defects of a fatal character appearing upon the face of the record proper will be reviewed by this court even in the absence of a motion for new trial, or in arrest. Sweet v. Maupin, 65 Mo. 65 ; Weil v. Greene Co., 69 Mo. 286 ; McIntire v. McIntire, 80 Mo. 470.

On the facts as they are found in the final judgment of the circuit court there is no merit whatever in the defense interposed by the sureties. From these findings it appears that the bond was duly delivered and approved by tbe county court. After it had been approved it was mutilated, defaced and tampered with by tbe fraudulent erasure of tbe name of one of tbe sureties. It is true it does not appear by whom this erasure was made ; but it could not have been made by tbe county. It must have been made by the surety or some county officer, or some third person. Such conduct on tbe part of the surety would not release him from liability on tbe bond. Tbe alteration of a bond by an officer who is by law simply tbe custodian of it will not affect its validity. Tbe mutilation of an official bond by such an officer or by any third person is spoliation and nothing more, and does not relieve the principal or any surety from liability thereon to tbe county. State v. McGonigle, 101 Mo. 353, and cases cited.

Tbe order of the circuit court made at tbe November term, 1885, setting aside tbe former judgment in favor of tbe county and tbe subsequent judgment in favor of tbe defendants are reversed. The petition for review is dismissed, and tbe judgment first rendered in favor of tbe county is reinstated.

All concur, except Babolay, J., who dissents.