Klarsch v. Adams ( 1983 )

CRIST, Judge.

Motion to set aside default judgment and to quash execution denied. We reverse and order the sustentation of the motion to quash.

Appellant Tyner was a co-defendant in a suit filed by respondents-plaintiffs in magistrate court. On September 12, 1975, verdict in favor of Tyner was rendered. Plaintiffs filed a notice of appeal to the circuit court. Tyner did not receive notice of appeal as required by § 512.190, RSMo. 1945. Judgment by default was entered against Tyner on September 15, 1977 in the circuit court. An execution on the default judgment was issued on April 22,1982. Tyner’s motion to quash followed. The trial court denied the motion by reason of the three year statute of limitations. Tyner appeals.

Plaintiffs admitted the circuit court did not obtain jurisdiction over the person of Tyner by reason of lack of notice to him of the appeal from the magistrate court. Plaintiffs also conceded a judgment void ab initio can be collaterally attacked by motion more than three years after its rendition.

Plaintiffs’ admissions are dispositive of this appeal. The June 3, 1982 judgment of the circuit court is reversed. Tyner’s motion to quash the execution is sustained, and the judgment below is amended to so provide.

CRANDALL, P.J., and REINHARD, J., concur.