Fears v. Riley

MARSHALL, J.

Injunction to' annul a judgment and to restrain its enforcement.

On the 16th of December, 1890, Laura Riley, a resident of Audrain county, filed a suit in the circuit court of Audrain county, against Tobe Lee, a minor, H. L. Preston and I. H. Laveene, claiming ten thousand dollars damages against defendants, for publishing in the Kansas City Sunday Sun, and circulating a libel concerning her. The defendants were served with process, appeared and pleaded. A guardian ad litem was appointed for Lee, the minor, and he filed a general denial. On June 10th, 1891, defendants Preston and Laveene filed an answer, which was, first, a general denial; and, second, mitigating circumstances, and on the same day filed a motion for security for costs. On June 1st, 1891, defendants Preston and Laveene filed a motion for change of venue, which was granted on June 17th, and the cause sent to Randolph county circuit court, at Moberly. At the September term, 1891, of'the Randolph circuit court, the cause was continued by consent. At the February term of said Randolph circuit court, to wit, on February 1st, 1892, plaintiff filed an amended petition, bringing in John 0. Fears, George Bilbro, George O. McGuigan and 0. R. Nourse as codefendants. On February 23d, 1892, an alias summons with a copy of the amended petition attached was issued by the Randolph circuit court against John 0. Fears, directed to the sheriff of the city of St. Louis, returnable to the September term, 1892, and the cause was continued to the September term, 1892. This summons was served on Fears, personally, in St. Louis on the 24th of February, 1892. At the opening of the September .term, 1892, the sheriff had not returned the summons to Fears, and an order was entered directing the clerk to issue an alias summons for Fears, and the cause was continued to the February term, 1893. Later, during the September term, 1892, to wit, about September 26th, 1892, the sheriff of the city of St. *57 Louis, returned the summons against Rears, duly served, and thereupon the plaintiff directed the clerk of the Randolph circuit court not to proceed with the order for an alias summons to Rears. At the February term, 1893, the cause was continued to the September term, 1893, and at that term it was continued to the February term, 1894. At the last named term, plaintiff dismissed the cause as to Tobe Lee, George Bilbro, George O. McGuigan and R. 0. Nourse, took judgment by default against H. L. Preston, I. H. Laveene and John 0. Fears, and, upon inquiry, her damages were assessed at $10,000. Afterwards an execution was issued against Fears, directed to the sheriff of the city of St. Louis, who was proceeding to levy under it, when Fears instituted this action in the circuit court of Randolph county, making Laura Riley, George Robertson, her attorney, J. R. Lowell, clerk of the circuit court of Randolph county, and Patrick M. Stead, sheriff of the city of St. Louis, defendants. The petition alleges the institution of the libel suit in Audrain county, and states, “that in order to cause the circuit court of Audrain county to exercise jurisdicton in said action said Laura Riley, fraudulently and by means of false representation, imposed upon the court in this1st, she alleged residence in Audrain county, when in fact she resided in St. Louis; 2d, she made Tobe Lee, a minor child, who was a resident of Audrain county, a party defendant, for the fraudulent purpose of obtaining jurisdiction in Audrain county; 3d, she imposed on the court, by fraudulently using its criminal process to arrest Preston and Laveene in Kansas City, under a warrant for criminal libel, bring them to Audrain county, and while thus there, have them served with summons in the civil suit; that after the change of venue to Randolph county the plaintiff filed an amended petition, enlarged her claim for damages to $25,000 and brought in new defendants, “well knowing that said Tobe Lee was not liable thereon, but was made a party solely for *58 the fraudulent purpose of deceiving the court and inducing it to continue to exercise jurisdiction, as she afterwards, to wit, on February 8th, 1894, voluntarily dismissed her said action as to Tobe Lee,” and at the same time obtained judgment against the other defendants; 6th, that the judgment was unauthorized and premature, because there was a motion for security for costs pending and undis-posed of, and no default could therefore legally be granted; 7 th, that Fears filed no answer in the libel case because he relied .on the advice of his counsel that the order for an alias summons against him superseded the summons that had been served on him in February, 1892, and that he was waiting to be served with the alias summons; 8th, that he has a good defense to. the libel suit, and that the court heard no evidence on the trial thereof tending to connect him with or make him liable for the libel. The prayer of the petition is that the judgment be adjudged null and void and the defendants be enjoined from enforcing it.

The answer denied the allegations of fraud and asserted the validity of the judgment.

The circuit court heard the evidence — to which all necessary reference will hereafter be made in the course of this' opinion — and entered judgment for defendants.

Plaintiff appeals.

I.

It is the settled law in our State that in order to set aside a judgment for fraud, even in a direct proceeding, it must appear that fraud was practiced in the very act of obtaining the judgment. [Lewis v. Williams, Admr., 54 Mo. 200 .] It is not enough that there was fraud in the cause of action on which the judgment is founded and which could have been interposed as a defense (unless its interposition was prevented as a defense by fraud): [Payne v. *59 O’Shea, 84 Mo. 129 ; Murphy v. DeFrance, 105 Mo. 53 ; Oxley Stave Co. v. Butler Co., 121 Mo. 614 .] The judgment must be concocted in fraud, and the fraud must be actual fraud as contradistinguished from a judgment obtained on false evidence. [Moody v. Peyton, 135 Mo. 482 .] These principles and these cases have lately been reviewed and approved by this court in Hamilton v. McLean, 139 Mo. 678 , and in Bates v. Hamilton, 144 Mo. 1 .

Apply these tests to the allegations of the petition, and we have this result: It may have been false that Laura Riley was a resident of Audrain county, but that was a fact to be tried in that case, which was open to denial and contest by the defendant, and no more divests the court of jurisdiction or renders its judgment void on the ground of fraud than any other fact falsely asserted or testified to in the case. It may have been that she joined Tobe Lee, a minor, as a party defendant so as to be able to institute the suit in the county in which she lived and one of the defendants is found, under section 2009, R. S. 1889, but this was no fraud on the court, because the. court was informed that Lee was a minor, and it appointed a guardian ad litem for him, and he filed an answer. Moreover it is wholly a mistake to say that an infant is not liable in an action for tort, e. g. assault, false imprisonment, libel, slander, etc. [Conway v. Reed, 66 Mo. 346 ; Morgan v. Cox, 22 Mo. 374 ; Addison on Torts (6 Ed.), p. 155, par. 101; Cooley on Torts (2 Ed.), p. 120.] Tobe Lee was liable in this case because he circulated the libel. [Townshend on S. & L. (4 Ed.), pp. 101, 102.] No fraud Avas, therefore, perpetrated in the very act of procuring the judgment in this respect. It may be Laura Riley perpetrated a wrong on Preston and Laveene in bringing them to Audrain county, under a criminal warrant, and then liaAung the summons served on them in the civil case, but that was not a fraud on the court, and was a defense which Preston and Laveene alone could make, and they did not *60 do so, but on tbe contrary filed an answer in tbe case'. Tbe filing of tbe amended petition in tbe Randolph circuit court, keeping Tobe Lee as a defendant, and at tbe trial, dismissing tbe case as to bim, was as herein shown no fraud upon tbe court, and bad no different effect upon tbe case than if any other resident of Audrain county bad been tbe defendant instead of Tobe Lee. Taking judgment while a motion for security for costs was pending was not a fraud upon tbe court, for tbe court takes judicial notice of tbe state of a case as shown by its own records. Only a motion going to tbe merits dispenses with tbe necessity of answering. [Hill v. Meyer, 41 Mo. 585 .] Aside from this Eears filed no motion for security for cost. That motion was filed by Preston and Laveene, and they also answered. Tbe order for an alias summons for Eears, entered at tbe September term, 1892, but not executed because tbe sheriff shortly thereafter returned tbe original summons, personally served on Eears on tbe 24th of Eebruary, 1892, was no fraud upon tbe court, and could not possibly have misled Eears. Eor be knew be was properly served in Eebruary to appear at' tbe September term, and says in bis testimony in this case that be sent tbe summons and copy of tbe amended petition to Preston and asked bim to attend to it, which be did by turning it over to bis attorney. Tbe fact that tbe attorney did not file an answer because of bis erroneous opinion that Eears was not obliged to answer until tbe alias summons was served on bim, and that Eears relied on this advice, in no manner affords any ground for equitable relief or affords tbe slightest basis for a claim that tbe judgment was procured by fraud. [Biebinger v. Taylor, 64 Mo. 63 ; Ketchum v. Harlowe, 84 Mo. 225 .] Whether Eears bad a good defense to tbe libel suit was a matter to be litigated in that case, and can not be afterwards inquired into. He bad bis opportunity to have a day in court to have that question determined. It can fiot be inquired into in this proceeding.

*61 II.

Having tiras cleared away the preliminaries, the only real question presented by this record remains, that is; did the change of venue from the Audrain circuit court, applied for by Preston and Laveene, and granted by the court, carry the whole case, as to them and as to Tobe Lee, to the Ean-dolph circuit court; and, further, in either event, had the plaintiff the right to amend her petition in the Eandolph circuit court so as to bring Eears into that court and acquire jurisdiction over him.

The position of the plaintiff herein is, that as section 2009, requires suits to be brought in the county in which the plaintiff resides and the defendant may be found, etc., and as section 2264 requires that all pleadings shall be filed and issues made up before the venue is changed (except that after change of venue, any pleading found insufficient upon demurrer or otherwise may be amended as in other cases), and as the petition was not found insufficient, by the Ean-dolph circuit court upon demurrer, therefore, the amendment making Eears a defendant was not warranted by law, and the circuit court of Eandolph county acquired no jurisdiction, and its judgment against Fears is void.

This contention is not tenable. Sections 2009 and 2264 constitute parts of the Code of Civil Procedure in this State, and are mere integral parts of a whole&wkey;different sections of different articles composing chapter 33 — and must be construed in the spirit of the whole law; and all parts being, in pari materia, must be construed together and made to harmonize, if possible, rather than to jangle like bells out of tune. Article VI is devoted to providing for amendments both before and after judgment to the end that all controversies between the parties may be brought before the court and their rights adjusted. New parties may be *62 brought in by an amendment to the petition or by supplemental petition and new summons (sec. 2099), and a petition or answer may be amended, as a matter of course, “without costs and without prejudice to the proceeding already had, at any time before the answer is filed.” Sec. 2102. These provisions, together with sec. 2211, which gives to the court to which the venue is changed, jurisdiction to hear and determine the cause, must also be taken into account as well as sections 2009 and 2264. The law never intended that the plaintiff should not be allowed to bring in a new defendant, necessary to the complete (that is the language of sec. 2099) determination of a controversy, because the defendants already in court had changed the venue. It is easy to see how such a construction might work a denial of justice or a splitting up of .the case, e. g., if A. sues B. & O. for partition and they change the venue, and it is afterwards ascertained that D. is also a party in interest, if A. can not amend so as to bring in D. he must fail in his action [Young v. Young, 88 Pa. St. 422], for this would not be a case where the court could find the pleading insufficient on demurrer, and if the words, “or otherwise,” in this section, gives the court power to authorize the amendment of the pleading upon the trial, to prevent the plaintiff being non-suited [Crockett v. Transfer Co., 52 Mo. 457 ; Merrill v. St. Louis, 83 Mo. 244 ], the same power must be held to exist in the court to allow such an amendment at any time before the trial when the application is made and the necessity shown. The conclusion therefore follows that the circuit court had the power to allow the amendment, and the fact that it did so allow it must be taken as conclusive that it found that it was necessary to a complete determination of the controversy, and it is not open to inquiry in this case.

This brings up the question whether when Pi'eston and Laveene asked and obtained a change of venue, the case went to Randolph county as to them only, and remained in *63 Audrain county as to Tobe Lee, or whether it took the whole case to Bandolph county, and if it was split into two parts, whether the amendment bringing in Eears was properly made in Bandolph county or should have been made in Audrain county.

In Holland v. Johnson, 80 Mo. 34 , it was held that where some of the defendants applied for a change of venue, and the court ordered the venue changed, “as to the parties which had made the aforenamed application therefor,” and in the changed forum the plaintiff dismissed the case as to the defendants who had been granted a change of venue, and took judgment by default against the defendants who bad not asked or been granted a change of venue, the judgment was void, and the sale under it passed no title, but that as it was void the plaintiff had a complete and adequate remedy at law and hence there was nothing upon which a court of equity could act.

No decision, statute or other authority is cited and no reason is given for the conclusion reached, it is simply stated. It may have been that the court was betrayed into error by the language of the order limiting the change of venue to those defendants who applied for it, for it does not rest upon any common law precedent or upon any statute of this State. Manifestly it could not have been the rule at common law, where so many obligations were joint and not several, and it can not be the true rule in Missouri for it would prevent any determination of actions in partition, in applications for the appointment of a receiver, for winding up a partnership, and, in short, wherever more than one party was a necessary defendant to the complete determination of a controversy. It is opposed to the spirit of the law, which is that all controversies relating to a subject-matter shall be litigated in the same proceeding. It is wholly without precedent in this State, and is in direct opposition to the common consent and opinion 6f the legal profession in this- *64 State relating to change of venue statutes, which is itself of persuasive force [Venable v. Railroad, 112 Mo. l. c. 125, and eases therein cited], and it was so opposed to the wishes and intentions of the people of the State, that the legislature by statutory amendment, put the law back where it had always been supposed to be, by expressly providing “that one or more of several parties plaintiff or defendant may ask for the change of venue, and if the change is awarded, the entire cause shall be removed.” [Acts 1895, p. 93.] That decision therefore ought to be and is overruled.

It follows therefore that the whole case went to Randolph county, and that the amendment there was proper and ■ legal. The judgment of the circuit court in this case was for the right party, and there being no error in the record, that judgment is affirmed.

All concur.