Opinion
May 18, 1929.
1. JUDGMENT: Set Aside at Later Term. The general rule is that a judgment cannot be set aside by the court rendering it after the term at which it was rendered has ended, unless proper legal steps to suspend the judgment, by motion or otherwise, were taken during the term at which it was rendered.
2. ____: Partition: Dismissal: Reinstatement: Stipulation. Upon the dismissal of a partition suit the court loses jurisdiction of the cause after the end of the term, and cannot at a subsequent term, of its own motion or upon the application of either party, without the consent of the other party, set aside the order of dismissal and reinstate the case on the docket. But where both parties, at a subsequent term, appear and stipulate and agree that the order of dismissal may be set aside and the cause reinstated, the court has jurisdiction to reinstate the case on the docket.
3. DISMISSAL: Reinstatement by Agreement: Jurisdiction. Where both parties, at a subsequent term after a cause has been dismissed, appear and by stipulation agree that the order of dismissal may be set aside and the cause reinstated upon the docket, the court acquires jurisdiction to restore the case to the docket. The effect of the stipulation is not to confer jurisdiction by agreement; but the reinstatement of the cause by the voluntary appearance and consent of both parties amounts to the institution of a new suit, and not a continuation of the suit dismissed.
4. ____: ____: Power of Attorney: Collateral Attack. An attorney cannot, without special authority, enter the appearance of his client at a subsequent term and agree to the reinstatement upon the docket of a case dismissed at a preceding term. But where the written stipulation filed shows that the attorney appeared and agreed to a reinstatement, the client cannot, in a collateral proceeding, show that the judgment thereafter rendered was void or voidable on the ground that the attorney had no authority to consent to the reinstatement and that the cause was reinstated upon the docket and the judgment rendered without his knowledge, appearance or the service of process upon him. His remedy, if the attorney had no such authority and those charges are true, is by a direct attack upon the judgment.
5. JUDGMENT: Unauthorized Appearance of Attorney: Collateral Attack. A domestic judgment cannot be collaterally attacked on the ground that it was rendered upon the unauthorized appearance of an attorney for the complaining party.
6. ____: ____: Presumption. Although an attorney may not enter the appearance of his client in a cause without special authority so to do, yet in a collateral proceeding it will be presumed that a licensed attorney at law, who appeared for an unserved defendant, had authority to appear for him and to agree that a suit which had been dismissed by plaintiff at a preceding term might be reinstated on the docket.
7. JUDGMENT: Presumption of Validity. Where the decree in partition does not appear in the pleadings or the record, and the petition does not allege that it is void upon its face, a presumption of right action on the part of the court rendering it arises, and it will be presumed that it is valid upon its face.
8. ____: Unauthorized Appearance of Attorney: Decree in Partition: Collateral Attack. A suit by a defendant in a partition suit for rents against the purchaser of land sold by order of court at the partition sale, in which he alleges that the partition judgment was rendered without his knowledge, appearance or service of process upon him, is a collateral attack upon such judgment; and where the record shows that his attorney entered his appearance and the partition proceedings were in all things regular, such allegations are properly stricken out, for he cannot, in a collateral attack, show that his attorney did not have authority to enter his appearance and represent him.
9. ____: ____: ____: Judgment on Pleadings. Where the suit for the partition of lands against a defendant was dismissed by plaintiff, and the record shows that a stipulation, signed by the attorneys for the respective parties, was filed at a subsequent term, by which it was agreed that the cause should be reinstated upon the docket, and thereafter said defendant as plaintiff brings suit for rents of lands against the purchaser at the partition sale, and the pleadings therein admit that the lands were sold to such purchaser at the partition sale, and plaintiff's reply does not attack the sale on the ground of any defect, jurisdictional or otherwise, appearing on the face of the record, but only on the ground that the partition suit was reinstated without his knowledge, appearance or service of process upon him, the court may properly sustain the defendant's motion for judgment on the pleading, for the decree in partition is presumably valid, and the suit for rents is a collateral attack thereon.
Corpus Juris-Cyc. References: Appeal and Error, 4 C.J., Section 2665, p. 736, n. 30. Attorney and Client, 6 C.J., Section 128, p. 631, n. 76. Judgments, 34 C.J., Section 437, p. 214, n. 13; Section 840, p. 537, n. 68. Partition, 47 C.J., Section 665, p. 524, n. 30.
Appeal from St. Louis County Circuit Court. — Hon. John W. McElhinney, Judge.
AFFIRMED.
W.W. Schiek and James R. Claiborne for appellant.
(1) The legitimate province of collateral impeachment is void judgments. 1 Freeman on Judgments, 642, 644. (2) In practice the words discontinuance and dismissal mean the same thing, namely, that the case is sent out of court. Railway v. Franklin County, 55 Mo. 162; Thurman v. James, 48 Mo. 235. (3) When the judgment of dismissal was rendered in the May term against the plaintiff in the said partition suit and in favor of this appellant in the present suit, the plaintiffs were no longer in that court for any purpose, and the attorneys for either side could not reinstate the cause at the conclusion of the said term. Brewing Co. v. Hogg, 141 Mo. App. 391; Jude v. Sims, 141 Mo. App. 391; Parker v. Johnson, 22 Mo. App. 516; Woodward v. Woodward, 84 Mo. App. 228; State v. Goodrich, 159 Mo. App. 422; 18 C.J. 1145; State ex rel. v. Muench, 217 Mo. 140; 416 Ency. Pl. Pr. 1115. (4) An attorney at law has no authority to waive service for client of original process. Bradley v. Welch, 100 Mo. 258. An attorney, under ordinary circumstances, has power to acknowledge service of process issued in the cause for which he has been retained, and his written admission of service is binding on his client, with the single exception of the service of the original summons or subpoena against a defendant. In respect to such process, there must be specific authority to make such an admission, or to waive it by entering an appearance for the defendant. 3 Am. Eng. Ency. Law (2 Ed.) 323; Bradley v. Welch, 100 Mo. 258; State ex rel. v. Muench, 230 Mo. 238. (5) It is therefore evident that the entire judgment was void and a nullity; that the demurrer filed by the defendants should have been overruled, and that the case be permitted to proceed to trial. The Circuit Court of Phelps County had absolutely no jurisdiction to disturb the judgment rendered by it in the May term, for the reason that it became absolutely final, and that any judgment rendered without the entry of appearance or without service of process upon this appellant is void, and that the defendant, Baumhoff, in this proceeding, has no title to the property, or any claim thereto.
R.T. Brownrigg and Mason, Altman, Goodman Flynn for respondent.
(1) Where plaintiff, as here, a former co-tenant, brings ejectment proceedings to recover land which was sold in partition proceedings under final judgment prior to his ejectment suit, in which partition proceedings he was a party, such suit in ejectment is a collateral attack upon the judgment in partition. As to what constitutes a collateral attack see: Freeman on Judgments (5 Ed.) secs. 307-309; Harter v. Petty, 266 Mo. 297. (2) The judgment of a court of general jurisdiction cannot be collaterally attacked unless it is void on its face. Freeman on Judgments (5 Ed.) 819, sec. 383. (3) The plaintiff undertaking in this ejectment suit, in his reply, to attack the judgment pleaded in the defendant's answer, does not set out in his reply the recitals contained in the judgment rendered in December, 1921, in the partition suit. He only sets out two entries in the proceeding which were made in 1917. It, therefore, cannot be determined from anything that plaintiff has set up in his pleadings whether or not the judgment attacked was void on its face, and all the presumptions as to the validity of the judgment are against the plaintiff here. (4) After a judgment has been rendered by a court of competent jurisdiction a party to the suit cannot attack it collaterally by showing want of authority of an attorney to represent him who in fact undertook to do so. Cochran v. Thomas, 131 Mo. 278; Stuart v. Dickinson, 290 Mo. 546; Riley v. O'Kelly, 250 Mo. 662; Scott v. Royston, 223 Mo. 568; Miller v. Assurance Co., 233 Mo. 95; Freeman on Judgments (5 Ed.) sec. 610.
This is an action by plaintiff, appellant here, to recover the possession and rental value of certain real estate, and damages for withholding same from plaintiff. Judgment was rendered on the pleadings in favor of defendant and plaintiff appealed.
The suit was brought to the September, 1924, term of the Circuit Court of St. Louis County. The petition alleges that on April 1, 1922, plaintiff was the owner and entitled to the possession of an undivided one-fourth interest in certain land in St. Louis County, Missouri, describing it, and that defendant has, and now does, unlawfully withhold same from the possession of plaintiff. The damages are laid at $3000 and the rental value at $2500 per annum.
Defendant's answer (1) denied the allegations of plaintiff's petition, and (2) alleged, in substance, that pursuant to a decree in partition and order of sale, rendered by the Circuit Court of Phelps County, Missouri, in a cause wherein Isabella Brooks et al., were plaintiffs, and Justus W. Johnson, appellant here, et al., were defendants, said lands were sold at the courthouse door in St. Louis County on December 3, 1921; that defendant was the purchaser at said sale at the price of $28,000 and at that time received a deed whereby he became the owner of said lands, and ever since said date has been in full possession thereof.
Plaintiff filed a reply to defendant's answer, in which he admitted that defendant claimed title to the lands in question under the conditions and circumstances alleged in the answer, and denied all other allegations in said answer. It is then alleged that the decree in partition and order of sale were null and void, and on account thereof the purported sale of the land to defendant pursuant to said decree did not invest him with any right, title or interest in the lands for the following reasons:
(1) That during the May, 1917, term of said court, before the decree in partition and order of sale was made, plaintiff voluntarily dismissed said partition suit, and the following judgment of dismissal was rendered by the court at that time, viz.:
"Now at this day comes the plaintiffs herein by their attorney and dismiss their cause of action. Whereupon it is considered by the court that said suit be dismissed and that said defendants have and recover of and from the plaintiff all costs in this behalf laid out and expended and that execution issue therefor."
(2) That no further proceedings were had in said cause until the succeeding September term, 1917, of said court, when on September 8, 1917, during said September term, without the knowledge or consent of Justus W. Johnson, and without entry of appearance or service of process upon him, the following written stipulation was filed in said cause, viz.:
"It is hereby stipulated by and between counsel for plaintiff and defendant, Justus W. Johnson, in the above entitled cause that the order of dismissal heretofore made in this case may be set aside and the cause reinstated upon the docket and to be continued from time to time and not to be reset only on ten days' notice from either party, this because of pending suit in Supreme Court between above parties;" and
(3) That after the filing of said stipulation there was entered of record in said cause, the following order:
"Whereupon it is considered by the court that said order of dismissal made in said cause at the May term, 1917, of this court be and the same is hereby set aside and this cause of action is reinstated and continued."
The reply further alleges that the defendant in said cause, appellant here, at no time consented that the order dismissing said partition suit at the May, 1917, term of said court, might be set aside at a subsequent term and the cause reinstated, and that he at no time received any part of the proceeds of the sale of said lands.
Defendant demurred to plaintiff's reply. The court sustained said demurrer, and on motion of defendant, rendered judgment on the pleadings in favor of defendant, and plaintiff appealed.
In addition to the lands involved in this suit, the parties owned other lands in Phelps County, and as the greater part of their land was in that county, the partition suit was brought there.
The pleadings concede that defendant bought the land in question at a partition sale on December 3, 1921, and received a deed therefor. It is not claimed that the manner in which the circuit court proceeded in the partition and sale of the land was irregular. The sole contention is that the court had no jurisdiction to entertain such suit or take any procedural steps therein.
Appellant's contention is that when the partition suit was dismissed at the May term, 1917, the case went out of court, and after that term ended the court lost jurisdiction of the cause, and had no authority or jurisdiction at a subsequent term to set aside the final judgment of dismissal rendered at a former term, and reinstate the cause on the docket.
The general rule is that a judgment can not be set aside by the court rendering it after the term at which it was rendered, unless proper legal steps to suspend the judgment, by motion or otherwise, were taken during the term at which it was rendered. This proposition of law is so universally understood and applied that citation of authorities to support it is unnecessary.
We agree with appellant's contention that the partition suit went out of court when it was dismissed at the may term, 1917, and after the end of that term the court lost jurisdiction of the cause. We also agree that at the subsequent September term, the court of its own motion or on the application of either party, would have been powerless to set aside the order of dismissal rendered at the former term and reinstate the case on the docket. But where both parties appeared at a term subsequent to the dismissal and stipulated and agreed that the cause might be reinstated, a different question is presented. The effect of such stipulation was not an attempt to confer jurisdiction by agreement. The reinstatement of the cause by the voluntary appearance and consent of both parties amounted to the institution of a new suit and not a continuation of the original case. Speaking to a kindred question in Brewing Co. v. Hogg, 141 Mo. App. 391, 396, the Springfield Court of Appeals said,
"After this dismissal and the adjournment of the term this case was out of court as completely as if it had been tried on its merits, and a final judgment rendered. If it ever got back into court, how did it get back, and for what purpose? It could only be reinstated for trial upon its merits by consent of both parties, and this consent must be shown to be for the purpose of a trial on the merits, and after a reinstatement in this way, the case would, in legal contemplation, be a new suit instituted at the time of the entry of appearance of the parties and not a continuation of the original case."
We approve the doctrine announced in the Brewing Co. case, and applying it to the facts in the instant case, we hold that the reinstatement of the partition suit at a term subsequent to its dismissal, upon the voluntary appearance and consent of both parties, was, in effect, the institution of a new suit and not a continuation of the original action. It therefore follows, that the court had jurisdiction of the new suit and was authorized to proceed to judgment therein.
Appellant, however, contends that the agreement to reinstate the case, and the order reinstating it pursuant to such agreement, were both made without his knowledge or consent and without his entry of appearance or service of process upon him, and therefore, did not invest the court with jurisdiction of said cause.
It is true that the stipulation to reinstate the case was entered into and filed by the attorneys for the respective parties. It is also true that an attorney can not, without special authority, admit service of jurisdictional process upon his client (State ex rel. v. Muench, 230 Mo. 254, 255), and if it be shown that an attorney entered the appearance of his client in a cause without lawful authority so to do, such showing would be sufficient to authorize the court to set aside a judgment rendered in such cause, in a proceeding directly attacking the judgment on that ground. But the question confronting us is whether or not plaintiff may, in this case, attack the validity of the decree in the partition action, by showing that after the partition action was dismissed, his appearance and consent by attorney, to its reinstatement at a subsequent term, was unauthorized. We think not. Such procedure would be a collateral attack on the judgment and therefore not permissible.
In Cochran v. Thomas, 131 Mo. 258, the facts were strikingly similar to the facts in the case at bar. There plaintiffs brought suit in ejectment. Defendants answered claiming title under a sheriff's deed in partition. Plaintiffs offered evidence tending to show that they had no knowledge of the partition proceedings, and that their appearance therein was unauthorized, and requested the court to declare the law to the effect that if their appearance was unauthorized, the judgment was void. In disposing of this contention, we said:
"But the judgment, as has been seen, was valid upon the face of the proceedings and no direct attack is made upon it here. The attempt is to defeat its force by an indirect and collateral attack which we think cannot be done. Whether the appearances were authorized or not was a question upon which the court had the power to pass and in fact necessarily did pass in finding that the parties appeared. The finding is invulnerable collaterally. [Van Fleet, Coll. Attack, secs. 420 and 421, and cases cited.]"
It is well established in this State that a domestic judgment cannot be collaterally attacked on the ground that it was rendered upon the unauthorized appearance of an attorney. [Stuart v. Dickinson, 235 S.W. 446, 455.]
Although an attorney may not enter the appearance of his client in a cause, without special authority so to do, yet in a collateral proceeding, it will be presumed that a licensed attorney at law, who appeared for a defendant, although not served, had authority to do so. [State ex rel. v. Muench, 230 Mo. l.c. 254.]
Following the well-settled rule in this State, we hold that plaintiff may not avoid the effect of the decree in partition by showing in this action that such decree was rendered upon the unauthorized appearance of an attorney.
Appellant pleads that a decree was rendered in the partition suit, but the decree does not appear in the pleadings. Neither does appellant plead that the decree is void upon its face. Not having the decree before us, we must presume right action upon the part of the court rendering it, until the contrary is made to appear in a proper manner, and so presuming, we will presume that the decree in partition is valid upon its face.
The pleadings admit that the lands in question were sold to defendant at a partition sale held in December, 1921. Plaintiff's reply does not attack this sale on the ground of any defect, jurisdictional or otherwise, appearing on the fact of the partition proceedings. If it be true that the decree in partition was rendered upon the unauthorized appearance of defendant by attorney, that fact cannot be shown in this collateral proceedings in an attempt to avoid the effect of the decree in partition. The decree being presumptively valid, it is binding on plaintiff until set aside in a direct proceeding.
Defendant's motion for judgment on the pleadings was properly sustained. The judgment of the trial court is therefore, affirmed.
All concur.