Showles v. Freeman

Ewing, 0.

Jacob Showles commenced a replevin suit in Jackson circuit court against R. Y. Freeman, constable, and the plaintiffs in error were Showles’ securities on his replevin bond which was for $35, double the amount sworn to in the affidavit, as required by the statute. § 3, 2 Wag. Stat., p. 1024. The defendant filed a motion asking the court to require the plaintiff to give a new bond, (2 Wag. Stat., 1025, § 8,) upon failure to do which in the time required by the order of the court the case was dismissed. Thereupon the court assessed the damages aud rendered judgment against the sureties for $250 and costs. Wag. Stat., §§ 11, 12. At the next term of the court the sureties, the Bairds, filed their motion as follows :

“Now come E. J. Baird and W. G-. Baird and move the court to set aside the judgment heretofore rendered against them because the same is illegal, irregular and void for the following reasons: 1st. The judgment is against them as securities on the bond to defendant and is in the penal sum of $35 while the judgment is for $250 and all costs of suit. 2nd. Judgment was rendered without notice to said securities, or either of them.” This motion was overruled by the court, whereupon they sue out their writ of error and bring the case to this court.

I. This motion was filed by authority of § 3727, 1 R. S., 1879, which is to this effect: “ Judgments in any court of record shall not be set aside for irregularity, on motion, unless such motion be made within three years after the term at which such judgment was rendered.” It has long been the recognized practice of this court that irregular judgments maybe set aside on motion filed any time within three years after the term at which such judgment may have been rendered. Stacker v. Cooper circuit court, 25 Mo. 401; Doan v. Holly, 27 Mo. 256; Moss v. Booth, 34 Mo. 316; Harkness v. Austin, 36 Mo. 47; Downing v. Still, 43 Mo. 309; Jones v. Hart, 60 Mo. 351. Such irregularity as may be reached by motion is defined to be “ the want of adherence to some prescribed rule or mode of proceeding, and it consists either in omitting to do something that is necessary for the dae and orderly conducting of a suit, or doing it in an unseasonable time or improper manner. Tidds Prac., 512, 513. The question then arises is there such irregularity in this case as will authorize the judgment to be set aside on motion. Where judgment is rendered by default before the time for pleading has expired, it constitutes such irregularity as will authorize its being set aside, Doan v. Holly, 26 Mo. 186; Branstetter v. Rives, 34 Mo. 318; Brackett v. Brackett, 61 Mo. 221. In the last cited case Judge Wagner said: “If the court, by inadvertence or mistake, made a miscalculation in computing the amount, that would not be one of the irregularities contemplated by the statute.” That was a case of attachment and the petition contained three counts; the first upon a promissory note and the others for money loaned. Judgment was rendered before the time for pleading to the two counts for money loaned had expired, and it was insisted, therefore, that it was irregular; but the judgment states that “the court finds from the pleadings and evidence that the defendant is justly indebted to the plaintiff in the sum, etc., * * the same being founded on a note for the direct payment of money.” The court held that, although the judgment appeared to be for an amount greater than the note, yet that was a matter of calculation for the trial court, and did not come within the irregularities contemplated by the statute. But in the case at bar the judgment could require no calculation. It could not exceed the amount of the bond. The court could, under no circumstances, render judgment against the sureties for any sum in excess of the bond itself. It was bound not to exceed the penalty in the bond. The general principle is that in suits on j)enal bonds with collateral conditions no recovery can be had in excess of the penalty of the bond. State ex rel. Moore v. Sandusky, 46 Mo. 377; Farrar v. United States, 5 Peters 373; Farrar v. Christy, 24 Mo. 474; Sedg. on Dam., 426.

II. But, disregarding the motion and bill of exceptions, the whole record proper of this replevin suit is before this court on writ of error. Erom an inspection of that record it is apparent that the circuit court committed error by rendering judgment against sureties in a penal bond with collateral conditions for an amount greater than the penalty.

This is such erro? on the face of the record itself; a§ will authorize this court to reverse the judgment of the circuit court aud remand the case for correction, and which is accordingly ordered.

All concur.