L. H. Rumsey Manufacturing Co. v. Baker , 35 Mo. App. 217 ( 1889 )

Rombauer, P. J.,

delivered the opinion of the court.

The plaintiff, a. sub-contractor, instituted its suit in the Greene county circuit court in October, 1886, for the purpose of subjecting the property of the defendants to a mechanic’s lien, and obtained judgment in July, 1887, against Mathews and Baker, the principal contractors, for the debt, and also a judgment of lien against the defendants’ property. This was at the May term of said court.

On November 11, 1887, such day being at a succeeding term of said court, the defendants appeared and filed their-motion to set aside this judgment and the execution issued thereon, alleging that the judgment was irregular, illegal and void, for that the said defendants and Mathews had never been summoned to appear therein, nor did either appear, or authorize any one to appear for them therein, and that the defendants had a meritorious defense to plaintiff’s action, which they had no opportunity to establish. The motion was verified by oath.

Upon a hearing of this motion the defendants offered testimony to show that no summons was ever served upon them or either of them, and also that the materials sued for were not sold by plaintiff to the contractors for the purpose of being used in the defendants’ building, or any particular building, but merely as articles of merchandise. This evidence was ruled out by the court upon plaintiff ’s objection. • It appearing by the sheriff ’ s return that the defendant Mathews had never been served, the court amended the judgment entry of July, 1887, so as to vacate the judgment against Mathews, and overruled the defendant’s motion to set aside the judgment and execution.

The defendant, James Baker, one of the owners of the property appealing, assigns for error these rulings of the trial court upon the motion.

It is claimed that appellants’ motion to set aside the judgment, and for leave to answer, was a direct proceeding between the original parties to the suit, attacking the judgment as being either void or voidable. Conceding all this we see no error in the ruling of the court.

The sheriff’s return, which is alleged to be untrue, is in the following words: “Executed the within writ in Green county, Missouri, on the sixteenth day of October, 1886, by delivering a certified copy of the original petition, and a copy of this writ to Maggie C. Baker, she being first served, and a copy of this writ to a member of the family above the age of fifteen years old of James Baker, and at the usual place of abode of said James Baker.” That return is part of the record, and is on elementary principles conclusive on Maggie C. and James Baker, the defendants purporting to have been thus served. Hallowell v. Page, 24 Mo 590; Decker v. Armstrong, 87 Mo. 316, 319, and cas. cit.; State v. O'Neill, 4 Mo. App. 222. It is only in cases where the invalidity of the proceeding is attempted to be shown by matter dehors the record, or where the irregularity appears by the record itself, that the judgment can be attacked after lapse of the term, even in a direct proceeding between the original parties, by motion, petition for review, or writ of error coram nobis. Thus in Ex parte Toney, 11 Mo. 661, it was shown that the party sentenced to the penitentiary was a slave. In Ex parte Gray, 77 Mo. 160, that he was a minor under the age of eighteen years. In Latham v. McNees, 50 Mo. 384, that a judgment had been recovered against a married woman without joining with her husband, as the statute required, and in Randolph v. Sloan, 58 Mo. 155, that the appearance of counsel was unauthorized, and that there was neither summons nor service in the case.

It would be a strange anomaly in the law, if parties would be permitted to urge, in defeasance of a judgment rendered, reasons which could have no potency whatever in preventing its rendition.

The defendants’ counsel seem to take the view, that under the statute and the construction put upon it by the courts, one may move for a review at a subsequent term even if he has been summoned, to appear provided he did not appear, nor any one for him, and an interlocutory judgment by default has been made final .against him. But such is not the law. In Campbell v. Garton, 29 Mo. 343, 345, where it seems a similar construction was contended for, the supreme court said: “ The record shows that the plaintiff in error, defendant in the ejectment suit, was duly summoned as required by law; and it also shows that he appeared to the action. But having been summoned was sufficient, and having failed to answer, his proper course was by motion to set aside the interlocutory judgment.”

Under section 3684-6 and 7 of the Revised Statutes a defendant can file his petition for review only in those •cases where the record fails to show a valid service of a summons upon him. Those sections as the history of the enactment clearly shows have reference to cases of constructive service only. If the defendants were in court by summons, their motion without regard to its merits was properly dismissed. Tennison v. Tennison, 49 Mo. 110. That they were in court by summons conclusively appears by the sheriff ’ s return, the truth of which they cannot controvert.

Nor is it apparent how the fact, that the original judgment entry against Mathews, one of the defendants admittedly not served with process, was erroneous, can be of any avail to the defendants appealing. The transcript shows that it was disclosed upon the hearing of this motion, and so appeared in the minutes of the clerk that the plaintiff had dismissed its suit against Mathews before entry of final judgment. That entry therefore as far as Mathews was concerned was a mere misprision of the clerk, and the court was fully authorized, even after the lapse of the term, to correct it nunc pro tunc, so as to show the true judgment, which the court intended to render, and which in fact it did render, although the clerk made an erroneous entry thereof. Gibson v. Chouteau's heirs, 45 Mo. 173 and cas. cit.; Priest v. McMaster, 52 Mo. 60; Allen v. Sales, 56 Mo. 28.

Nor is the defendant’s contention tenable that the correction of the original judgment entry was in effect a vacation of that entry, and, being made after defendants’ motion was filed, entitled the defendants to be heard upon the merits. We are referred to no case which has ever so held. Although the correct method as stated in Allen v. Sales, supra, where a judgment entry is amended nunc pro tunc, is to re-enter the correct judgment, yet it is not a new judgment in any sense, but relates back to the date of its original rendition. Hence all evidence which the defendant offered upon the hearing of the motion touching the insufficiency of the notice of lien, and the insufficient verification of the lien claim, was properly ruled out by the court.

All the judges concurring,

the judgment is affirmed.