Opinion
February 15, 1945.
1. — Evidence. Court of Appeals could take judicial notice that Newton County had less than 50,000 population.
2. — Justices of the Peace. Where value of piano and damages claimed in amended statement and affidavit in replevin exceeded $250, justice of peace in county having less than 50,000 inhabitants was without jurisdiction and judgment rendered by justice of peace was void (Mo. R.S.A., sec. 2934).
3. — Justices of the Peace. Where judgment of justice of peace was void, action of circuit court on certiorari to review the judgment could not vitalize it in whole or in part.
4. — Certiorari. Certiorari cannot be made to serve the purpose of an appeal or writ of error.
5. — Certiorari. All that can be done under writ of certiorari is either to quash or to refuse to quash the proceedings of which complaint is made.
6. — Execution. A sheriff cannot be enjoined from making a levy by virtue of an execution issued upon a judgment void on its face.
7. — Execution. Where execution had been issued on a judgment void on its face, the alleged judgment debtor had a complete and adequate remedy at law by moving to quash the execution, precluding resort to injunctive relief.
Appeal from Circuit Court of Newton County. — Hon. Emory E. Smith, Judge.
AFFIRMED.
Ruark Ruark for appellants.
The jurisdiction of the justice court in Newton county is limited to $250, including the value of the property sought to be recovered in the replevin action. Sec. 2934, R.S. Mo. 1939; Alexander v. McFarland, 203 Mo. App. 229, 213 S.W. 488; Stephens v. Reberet, 186 Mo. App. 456. The claim is inseparable and is not affected by a subsequent reduction or remittitur. State ex rel. Wholey v. Porterfield, 221 Mo. App. 666, 283 S.W. 459. The excess of jurisdiction makes the whole judgment void in entirety; and this question may be raised at any time, and in any court. Western Oil Gas Co. v. O'Dell, 115 S.W.2d 134; Jones v. St. Joseph Gazette Co., 385 S.W. 771; State ex rel. Wholey v. Porterfield, 221 Mo. App. 666. An appeal from a void judgment confers no jurisdiction on the reviewing court, and any action it might take to determine the merits of the controversy would lkewise be a nullity. State v. Smith, 176 Mo. 90; Abernathy v. Moore, 83 Mo. 65; In re Wood Estate, 138 Mo. App. 258; Alexander v. McFarland, 203 Mo. App. 229; Feldman v. Levinson, 93 S.W.2d 31. The circuit court's attempted judgment on the petition for writ of certiorari was also invalid as beyond the scope of its jurisdiction in such a proceeding, which did not entitle it to modify the lower court's judgment as to damages, nor to hear oral testimony on the question of fraud. Certiorari, 11 C.J., secs. 379, 380, pp. 210-211; Scott v. Smith, 176 Mo. 90; Ward v. Bd. of Equalization, 135 Mo. 309; State v. Gilbert, 164 Mo. App. 139; State v. Ellison, 268 Mo. 225. The nature of the attempted judgment of the circuit court on the petition for writ of certiorari was conditional or interlocutory and not sufficiently final or definite to issue a valid execution thereon. Judgments, 33 C.J., sec. 667, pp. 1053, 1054; Koch v. Meacham, 121 S.W.2d 279, 281; Bishop v. Bishop, 151 S.W.2d 553, 557; Haynes v. Trenton, 108 Mo. 123; White v. Reity, 108 S.W. 601. Equity will always intervene to protect against a judgment procured by fraud. Stewart v. Caldwell, 54 Mo. 536, l.c. 539. "A judgment should not, in our opinion, be made an instrument to defeat the very object it is intended to accomplish, that is, justice. It has been said that any fact which clearly proves it to be against conscience to execute a judgment and of which the injured party could not avail himself in a court of law, will justify relief in equity". Sullivan v. Kirkpatrick, 171 Mo. App. 233, l.c. 241; Miles v. Jones, 28 Mo. 87; Marberry v. Price, 57 Mo. 422; Baldwin v. Davidson, 139 Mo. 118; Crow v. Crow-Humphrey, 78 S.W.2d 207; Krashin v. Grizzard, 31 S.W.2d 984. And equity will intervene to prevent the legal wrong whether the judgment is void and not merely voidable; particularly where fraud or some other well recognized ground for equitable relief is presented. Sec. 1783, R.S. Mo. 1939; Engler v. Knoblaugh, 131 Mo. App. 481; State v. Bd. of Education, 171 S.W.2d 75; Mathias v. Arnold, 191 Mo. App. 352; Stockton, Ex'r, v. Ransom, Adm'r, 60 Mo. 535; Smoot v. Judd, 161 Mo. 673; Hansen v. Neal, 215 Mo. 256. Equity will intervene to prevent irreparable injury; such as the threatened taking of an article difficult to replace or of indefinite value. Hill v. Brothers, 217 S.W. 581, l.c. 582. Equity will intervene to protect the respondent on this ground alone. Equity strives to settle all controversies by one determination of the cause. Harrington v. Ryan, 88 Mo. App. 85; Warren v. Coal Co., 300 Mo. App. 442; Pokoke v. Peterson, 256 Mo. 501; Morris v. Hanssen, 78 S.W.2d 87; Washington University v. Baumann, 108 S.W.2d 403; Lambert v. St. Louis Gulf R.R. Co., 212 Mo. 692; Webb v. Cope, 192 S.W. 934; Jewell-Tea Co. v. City of Carthage, 257 Mo. 383; Coal Co. v. St. Louis, 130 Mo. 323. The Harrington Case above cited involved a bill to cancel a fraudulent contract and it was contended the petitioner was relegated to her defenses at law against actions arising under the contract. The court sustained the right to equitable relief, saying, l.c. 95: "In the nature of things she would be subjected to the annoyance, in so doing, of merely resisting the enforcing of such contract in different forms and different suits, which might be multiplied to a degree harassing and expensive in the extreme. Besides, by merely legal defenses she would in no instance secure the surrender and cancellation of the fraudulent contract, which would be a fruitful source of mischief while in the hands of the defendant. It is evident therefore that her remedies at law could not be full, complete and adequate in the sense attached to those terms, as depriving a court of equity of the right to exercise jurisdiction in matters concurrently within the jurisdiction of courts of law. Such a remedy on her part would only be partial and would not go to the full extent of establishing her right to a decree, cancelling the instrument evidencing the contract and enjoining the defendant from making it the subject of actions at law in which he might obtain an unfair advantage by abusing the process of the courts in directing its machinery against plaintiff or her property. One of the appellants is an officer in the United States Army. The profession of the other is that of an active registered Christian Science Practitioner. Both appellants occupy positions tantamount to Ministers in the Church of which they are members. It is alleged that the maintenance of the judgments prejudices them in these respects. It has long been held that money damages are not an adequate remedy for continuing injury to reputation and profession, and that equity will intervene on this account. Injunctions, 32 C.J., secs. 32 and 209, pp. 54 and 155; Warren v. Coal Co., 200 Mo. App. 442; Wolf v. Harris, 267 Mo. 405; Schubach v. McDonald, 179 Mo. 163; Glaessner v. Anheuser-Busch, 100 Mo. 508; Chas. Reilly Optical Co. v. Burke, 41 S.W.2d 907; Glover v. Shirley, 169 Mo. 637. It is also alleged that appellants are the owners of certain described real estate and that the continued maintenance of such judgments are a cloud upon their title. It is apparent that the maintenance of such judgments, and the threats of judicial sale thereunder, is an effective bar to a free sale of the property; and equity will exercise its authority to relieve such situation. Madden v. Fitzsimmons, 150 S.W.2d 761; Gardiner v. Terry, 99 Mo. 523; Payne v. Daviess Co. Sugs Assn., 126 Mo. App. 593.
Wayne V. Slankard for respondents.
A court of equity will not enjoin execution issued on a void judgment. Howlett v. Turner 93 Mo. App. 20; Straub v. Simpson, 74 Mo. App. 230; St. Louis, I.M. S. Ry. Co. v. Reynolds, 89 Mo. 146; St. Louis S.F. Ry. Co. v. Lowder, 138 Mo. 533, 39 S.W. 799; Ostmann v. Frey, 148 Mo. App. 271, 128 S.W. 253, Gregory Bus Line v. Stephens, 223 Mo. App. 1036, 15 S.W.2d 910; 34 C.J., sec. 682, p. 434; 32 C.J., sec. 39, p. 61. And this is true even where land is sought to be sold under such execution. Henman v. Westheimer, 110 Mo. App. 191, 85 S.W. 101; Marsala v. Gentry (Mo. App.), 232 S.W. 1046. And a void instrument, record or judgment not constituting a cloud on title aid of a court of equity cannot be invoked. Thorp v. Miller, 137 Mo. 231, 38 S.W. 929; Clark v. Covenant Mutual Life Ins. Co., 52 Mo. 272; Hannibal St. J.R.R. Co. v. Nortoni, 154 Mo. 142, 55 S.W. 220. A judgment, void on its face, binds no one, and hence action in equity will not lie to set such judgment aside. Stockton, Ex'r, v. Ransom, Adm., 60 Mo. 535 (This case relied on by Appellants); Nat'l Union Fire Ins. Co. v. Vermillion (Mo. App.), 19 S.W.2d 776; Tokash v. Workmen's Compensation Commission, 346 Mo. 100, l.c. 109, 139 S.W.2d 978; Freeman, Judgments (4th Ed.), sec. 117; 34 C.J., sec. 811, p. 509. No resort to a court of equity can be had where an adequate and complete remedy at law exists. 21 C.J., sec. 14, p. 35; State ex rel. Nute v. Bruce, 334 Mo. 1107, 70 S.W.2d 854. Appellants have complete and adequate remedies at law. Proceedings under the statutes provide full, complete and adequate remedy at law for staying, setting aside, or quashing an execution, and bill in equity is not proper. Secs. 1387, 1388 and 1389, R.S. Mo. 1939; Jones v. Overall, 223 Mo. App. 266, 13 S.W.2d 581; 34 C.J., sec. 692, page 401. Writ of certiorari will lie to bring up record of inferior court to determine if such court acted within its jurisdiction. State ex rel. Spencer v. Anderson (Mo. App.), 101 S.W.2d 530; State ex rel. Bentley v. Reynolds, 190 Mo. 578, 89 S.W. 877. Replevin is the proper remedy of the appellants against the purchaser at the execution sale. St. Louis S.F. Ry. Co. v. Lowder, 138 Mo. 533, 39 S.W. 799; Gregory Bus Line v. Stephens, 223 Mo. App. 1036, 15 S.W.2d 910, and cases there cited. Void judgment may be collaterally attacked whenever and wherever it comes in the way. Abernathy v. Mo. Pac. Ry. Co., 287 Mo. 30, l.c. 38.
This cause had its origin in the circuit court of Newton County, Missouri, on the 18th day of April, 1944, by the appellants' filing a petition seeking to restrain the sheriff of Newton County and one Dr. Melvin McCullough from levying, or causing a levy to be made, upon appellants' property by virtue of an execution, based on a judgment of said circuit court. On the same day, a temporary injunction was asked and granted by the judge of said court in vacation. The petition was later amended, a demurrer filed thereto, sustained by the court and the temporary injunction dissolved. Appellants refused to plead further and their petition was dismissed. An affidavit for appeal was filed, sustained and the cause sent here.
The facts, material here, as shown by the amended petition are: On November 1, 1942, appellants purchased from Dr. Melvin McCullough and wife a dwelling and at the same time, entered into an oral agreement permitting them to retain a piano, located in said premises, for one year from that date. On March 30, 1943, appellants were served with a summons and writ of replevin issued out of a justice court in Neosho Township, Newton County, whereby Dr. McCullough sought to recover possession of the piano, alleging its value to be $250. An amended statement was filed, again alleging the value of the piano to be $250 and also asking for $250 damages for the taking and detention thereof and for injuries thereto. A change of venue was had and upon a hearing, the justice rendered judgment for plaintiff, finding him entitled to the possession of the piano and awarded him damages in the sum of $250, as prayed for. On the day of the judgment, the piano was taken from the custody of appellants. On May 14, 1943, a transcript of the judgment of the justice was filed in "Neosho Township," an execution issued thereon and served on appellants. Appellants, on May 20, 1943, filed a petition for writ of certiorari in the circuit court of Newton County. The petition was heard in the Newton County circuit court and the court entered an interlocutory judgment, remanding the case for a new trial before the justice of peace, unless a remittitur of $125 should be made by Dr. McCullough. The Doctor's attorney complied with the court's order and remitted the sum of $125 by remittitur duly filed in the circuit court on June 23, 1943 and it appears that no further action was ever taken by the circuit court. The petition then alleges that an execution was issued on the interlocutory judgment of the circuit court, a levy was made upon appellants' automobile, and that the sheriff of Newton County is threatening to sell the same on April 10, 1944, to recover the sum of $167. It is then alleged that the judgment of the justice of peace is void because in excess of his jurisdiction and that the action taken by the circuit court is also void and of no effect; that the purported judgment is a lien upon certain real estate of plaintiffs and a cloud upon their title. The petition alleges that the plaintiffs are "Readers in the First Church of Christ, Scientists, Neosho" and that the various actions of respondents tend to place them in disrepute in the community. They pray the court to permanently enjoin respondents from enforcing said judgment and from levying any execution founded upon such judgment upon the property of the appellants.
In the briefs of both appellants and respondents, it is conceded that the judgment of the justice of peace is void because the amount claimed was in excess of his jurisdiction; that Newton County is a county of less than 50,000 inhabitants and that a justice of peace in said county has no jurisdiction in matters involving more than $250.
We take judicial notice that Newton County has less than 50,000 population. [Ruckert v. Richter, 106 S.W. 1081, 127 Mo. App. 664; State ex rel. v. Mooneyham et al., 253 S.W. 1098, 212 Mo. App. 573.]
The value of the piano and damages claimed in the amended statement and affidavit in replevin exceeded $250 and the judgment rendered by the justice of peace was void. [Section 2934, Mo. R.S. Anno. 1939; Stevens v. Reberert, 171 S.W. 638, 186 Mo. App. 456; Alexander v. McFarland, 213 S.W. 488, 203 Mo. App. 229.] This being true, the action of the circuit court could not vitalize it in whole or in part:
" Certiorari is a remedy narrow in its scope and inflexible in its character. It is not a general utility tool in the legal workshop. It cannot be made to serve the purpose of an appeal or writ of error. All that can be done under it is either to quash or to refuse to quash the proceedings of which complaint is made." [State ex rel. Manion v. Dawson, 225 S.W. 97, l.c. 99, 284 Mo. 490. See also: State ex rel. v. Ellison, 268 Mo. 225, l.c. 238, 186 S.W. 1075.]
This question now arises: Can a sheriff be enjoined from making a levy by virtue of an execution issued upon a judgment void upon its face? We think that he cannot. This question was before the Supreme Court of Missouri in the case of St. Louis I.M. S.R. Co. v. Reynolds et al., 1 S.W. 208, 89 Mo. 146. In this case the Railroad sought to enjoin the levy of an execution issued upon a void judgment. SHERWOOD, J., speaking for the Supreme Court said:
"If the justice of the peace had acquired no jurisdiction, as the petition alleges, the railway company has no need to come into a court of equity to enjoin proceedings which are void ab initio. If the judgment of the justice is void, then will the execution issued thereon be void also, and equity will not interfere to do a nugatory act. The remedy of the railway is ample and adequate at law, and this prevents the interposition of a court of equity, as a suit could be maintained against the constable as a trespasser, and the purchaser's pretended title would be valueless. This is elementary law."
In Marsala v. Gentry et al., 232 S.W. 1046 (Kansas City Court of Appeals), an injunction was sought to restrain the sale of real estate under an execution, on the ground that such sale would cast a cloud upon the title. A temporary injunction was granted. Defendants filed a demurer to the petition which was overruled and they refused to plead further. The injunction was made permanent and they appealed to the Kansas City Court of Appeals. That court reversed the trial court and held that as to Marsala, the judgment, upon which the execution was issued, was void upon its face and that it cast no cloud upon his title. The court said that, "the title, lien or claim which is asserted to cast such a cloud must be one apparently valid upon the face of the record, requiring resort to extrinsic evidence to establish its invalidity." The court further said:
"Injunction will not lie to restrain the sale of land under an execution issued upon a void judgment. . . . If these facts alleged in the petition are true, the record in the other case (where the judgment was obtained) would not show an entry of appearance of the defendant therein, but it would show a void judgment for lack of service on said defendant. We think that it is apparent the petition fails to state a cause of action." [See also: Henman v. Westheimer, 110 Mo. App. 191, 85 S.W. 101.]
Appellant also had a complete and adequate remedy at law by moving to quash the execution. This was not done and the petition states no reason for failure to do so. [Stockton, Executor, v. Ransom, Adm'r., 60 Mo. 535; Ruckert v. Richter, supra.]
In Stockton v. Ransom, supra, the probate court had rendered a void judgment, execution had been issued and a levy made on personal property. Stockton sought to enjoin the sale. A temporary injunction was granted and later made permanent. Stockton appealed and the Supreme Court reversed the trial court, saying:
"But here, in the first place, there was no judgment to set aside; and had there been an irregular judgment, nothing is averred to show that the execution could not have been arrested or quashed in the court where the supposed judgment was entered."
We hold in this case that the trial court correctly sustained the demurrer to appellants' petition, and its judgment is accordingly affirmed. Blair, P.J., and Fulbright, J., concur.