Opinion
Opinion filed March 30, 1929.
1. — Justice of Peace — Jurisdiction. Where suit is brought in justice of peace court against a non-resident of this State, and appearance for defendant is made by unauthorized agent, the justice has no jurisdiction and the the judgment is void.
2. — Executions — Regular on Face, Afford Protection to Constables and Sheriffs. It is well settled that where justice of peace has jurisdiction of the subject-matter, and renders judgment and issues execution, regular on its face it affords protection to constable or sheriff, even though the judgment itself may be void.
3. — Injunction — Will not Lie to Restrain Levy of Execution Where There is Adequate Remedy at Law. Where execution has been issued by justice of peace on void judgment, judgment debtor has adequate remedy at law against purchaser at execution sale, and injunction will not lie to restrain sale.
4. — Appeal and Error — Question Must be Brought to Attention of Trial Court in Motion for New Trial. A question not brought to attention of trial court in motion for new trial cannot be considered by Appellate Court on appeal.
Appeal from Pemiscot County Circuit Court. — Hon. Henry C. Riley, Judge.
AFFIRMED.
C.G. Shepard for appellant.
(1) Agency cannot be shown or proved by the statements of the agent. The agency must be proved by other evidence; as at best such declarations are mere hearsay, and therefore they are not rendered admissible by the fact that they were made under oath in a former suit, or were made in the course of the transaction. 2 C.J. 938. (2) An agent not having special power or authority to that effect, does not have the power to appoint a sub-agent or otherwise delegate his authority. Such being the law plaintiff's shop foreman at Blytheville, Mr. Colliers, had not the authority to appoint N.H. Stringer as agent of plaintiff company to enter its appearance before C.E. Meek, justice of the peace, or to transact any business in court on behalf of the plaintiff, neither did he have authority to employ an attorney for plaintiff. Meux v. Haller, 179 Mo. App. 466. (3) Where the record upon which a judgment of justice of the peace is rendered is apparently regular and said judgment can be defeated only by evidence outside or beyond the justice record, and while that may fail to show the defendant in such proceeding served, but show the defendant in said proceeding entered its appearance, when in fact the entering of appearance was by someone without authority an injunction will lie to protect the interest of the party whose appearance has been wrongfully entered. Goldie Construction Co. v. Rich Construction Co. et al., 112 Mo. App. 147; Sullivan v. Kirkpatrick, 171 Mo. App. 233. (4) Plaintiff in this case, defendant in the case before justice of the peace, being engaged in interstate commerce its busses used in said interstate commerce were not subject to levy under execution and an injunction will lie to prevent the levy of an execution on instruments used in interstate commerce even where it is admitted that the judgment upon which the execution issues is valid. Pullman Company v. Linke et al., 203 F. 1017. (5) Injunction or equitable relief will be granted where the law does not afford adequate relief. Replevin to recover immediate possession of the property would not lie in a case of this nature inasmuch as the affidavit which must be made in order to recover immediate possession in replevying proceedings must allege that the property has not been seized under any process, execution or attachment against the property of the plaintiff. The bus in question having been levied upon under execution issued against the defendant in said cause, the plaintiff in this cause, the necessary affidavit in order to obtain immediate possession of the property could not have been made. Stephens v. Curtner, 222 S.W. 497.
S.V. Medling for respondents.
(1) Existence of agency or the extent of his authority need not be established by direct and positive evidence, but may be inferred from facts and circumstances. If there is any substantial evidence from which agent's authority may be reasonably inferred, the question is one to be referred to the jury. Meux v. Haller, 179 Mo. App. 466 (7, 8). Appeal by defendant confers jurisdiction over person. Amounts to a general appearance in circuit court. Meyer v. Ins. Co., 92 Mo. App. 392; Wencker v. Thompson, 69 S.W. 743. Appeal was by agent and attorney which it had a right to do. Sec. 2890, R.S. 1919. (2) The fact that a bus would regularly carry passengers to another State from this State and vice versa, would not bring it under any State or Federal law so as to exempt it from attachment or execution.
Plaintiff filed its bill in equity to enjoin defendants, Clarence Stephens, Orace Scott and Steve Medling from enforcing by execution a certain judgment alleged to be void. Clarence Stephens had brought a suit by attachment against the present plaintiff, a non-resident corporation operating a bus line and, as alleged, engaged in interstate commerce. Defendant Steve Medling is attorney for defendant Stephens. Defendant Orace Scott is constable of Little Prairie Township, Pemiscot county. From a judgment dismissing plaintiff's bill and finding the issues for defendants, plaintiff has appealed.
No question is raised as to the pleadings and only such reference will be made thereto as seems necessary for an understanding of the issues. The bill alleges that defendant is engaged in interstate commerce; that defendant Clarence Stephens brought suit by attachment against this plaintiff before a justice of the peace in Little Prairie Township and obtained a judgment for $152.50; that plaintiff was not served with process; that the record of the justice shows that one, Stringer, as agent for plaintiff, entered plaintiff's appearance; that said Stringer had no right to represent plaintiff in said cause; that Stringer was a bus driver for plaintiff and had no authority to attend to court matters for plaintiff; that plaintiff had no knowledge of said suit until long after the judgment was rendered; that Stringer, without authority, appealed said cause to the circuit court; that no notice of appeal was given and the appeal was dismissed as required by law; that the justice record shows the judgment to be regular on its face; that execution was issued on said judgment and one of plaintiff's busses attached; that plaintiff has no adequate remedy at law and that plaintiff has a meritorious defense (which defense is fully set out).
The answer sets up the agency of Stringer and knowledge and ratification of his acts, in connection with the original proceedings, on the part of plaintiff. The reply was a denial of these allegations.
Plaintiff assigns as error No. 1, that the court erred "in holding that this case is controlled by the case of St. Louis S.F. Ry. Co. v. Lowder, 138 Mo. 533, 39 S.W. 799, and that an injunction would not lie." The record fails to show upon what ground the trial court rendered its decision. We think, however, this assignment raises the decisive question of this case, i.e., whether or not plaintiff has a remedy by injunction under the law and facts. These facts tend strongly to show that plaintiff's bus driver, Stringer, had no authority whatever to act for plaintiff in the matter of litigation; that there was no service on plaintiff in the attachment suit and that the appearance by plaintiff was through an unauthorized agent; that the judgment, although regular on its face, is void for want of jurisdiction over the person. Assuming then that the judgment is void has plaintiff a remedy by injunction to prevent the enforcement of an execution thereon against its personal property?
It is well settled that where a justice of the peace has jurisdiction of the subject-matter of a cause of action and renders judgment, if the execution is regular on its face, it affords complete protection to the constable executing the writ, even though the judgment itself may be void. [Owls' Nest v. Haines, 189 Mo. App. 433, 176 S.W. 513.] In the Lowder case, referred to by plaintiff in its assignment of error, supra, a judgment was rendered by a justice of the peace without service of process. A bill in equity was filed to restrain the collection of the judgment. The Supreme Court, after reviewing the authorities in this State held that, "The execution being regular upon its face and emanating from a court having jurisdiction of the subject-matter, was a sufficient protection to the constable against any action of trespass which might be brought against him by the judgment debtor, notwithstanding both judgment and execution were void, but it does not for that reason follow that the defendant in that suit did not have full, complete, and adequate remedy at law against the collection of a judgment which it alleges to be void. The defendant in the execution, plaintiff here, could have replevied the property from the purchaser after its sale by the constable under the execution. In such case the remedy at law would be ample and adequate.
"The judgment and execution being void no title would have passed to the purchaser of the property thereunder, notwithstanding such execution may have been a protection to the officer against an action of trespass against him by the owner of the property."
Prior decisions holding a contrary doctrine were specifically overruled. In the later case of Goldie Construction Company v. Rich Construction Company, 112 Mo. App. 147, 86 S.W. 587, it appeared that a judgment was rendered by a justice of the peace against a defendant not served with process. A stipulation was filed, however, by an attorney at law, who pretended to represent defendant and entered defendant's appearance. He had no such authority, but the justice assumed jurisdiction based on the stipulation. The St. Louis Court of Appeals, speaking through Judge GOODE, held that since the judgment was not void on its face, defendant could maintain an action to restrain its enforcement. The opinion attempts to distinguish that holding from the rule announced by the Supreme Court in the Lowder case, using this language:
"We are cited to the case of St. Louis, etc., R.R. v. Lowder, 138 Mo. 533, as establishing the rule that a void judgment before a justice will not be enjoined. But the judgment dealt with in that case was void on the face of the proceedings for lack of service. The court which gave the judgment had no jurisdiction, real or apparent. of the defendant. The present respondent is in a very different situation; for, as said above, an apparently valid judgment stands against it and can be shown to be invalid only by learning extrinsic facts."
We are much impressed with the reasoning in the Goldie case to the effect that defendant against whom the void or voidable judgment was rendered had no adequate remedy at law to prevent him from being harassed by the execution and his property seized. But the distinction attempted to be shown between the decision in the Goldie case and that of the Supreme Court in the Lowder case, to our minds, is not tenable. In both cases the justice had jurisdiction over the subject-matter. In the Lowder case there was no service and the judgment was void, yet the constable was fully protected by the writ of execution, regular on its face. In the Goldie case the judgment was void for matters not shown by the record and again the execution was a full protection to the officer serving the writ. The point upon which the Supreme Court decided the Lowder case was that plaintiff had an adequate remedy at law in replevin against any purchaser at an execution sale of property seized under the void judgment. That same remedy would have existed in the Goldie case and, under the ruling of the Supreme Court in the Lowder case, injunction would not lie, there being an adequate remedy at law. The ruling in the Lowder case has been consistently followed in this State. [M.K. T. Ry. Co. v. Hoereth, 144 Mo. 136, 45 S.W. 1085; Ostmann v. Frey, 148 Mo. App. 284, 128 S.W. 257 (St. Louis Court of Appeals); Farris v. Smithpeler, 180 Mo. App. 466, 166 S.W. 655; State ex rel. v. Brown, 172 Mo. 374, l.c. 381, 72 S.W. 640.]
It is therefore our opinion that, if the judgment in this case is void, and the evidence tends to establish that fact beyond question, plaintiff has a remedy at law against any purchaser at an execution sale and therefore the trial court properly dismissed its bill.
In view of that holding, other questions raised become immaterial. The point is made that since plaintiff is engaged in interstate commerce the execution is an unlawful interference therewith and for that reason the bill will lie. It is doubtful whether this court could entertain jurisdiction of the case if that point were properly raised and preserved. [State ex rel. Pickwick Stage Lines v. Barton, 4 S.W.2d 852.] Plaintiff did not bring that question to the attention of the trial court in its motion for new trial and it may not be considered on appeal. The judgment is affirmed.
Cox, P.J., concurs; Smith, J., not sitting.