SER vs. BOBST

Supreme Court of Missouri1844-01

8 Mo. 506

Summary · law.co

Holding. The Circuit Court erred in dismissing the appeal from the default judgment. The judgment of the Circuit Court is reversed and the cause is remanded for a new hearing and determination.

Henry Bobst brought a forcible entry and detainer action against Adam Ser before a justice of the peace, who entered a default judgment against Ser. Ser appealed to the Circuit Court, but Bobst moved to dismiss the appeal on the ground that appeals from default judgments were not permitted. The Circuit Court granted the dismissal. On further appeal, the court examined the original summons service and found it defective under the applicable statute.

The return of service stated only that a copy was left "at the dwelling-house" of the defendant with his wife, but the law required service at the defendant's "usual place of abode" and did not establish that the wife was a family member above fifteen years of age as required by statute. Because the justice of the peace had not properly obtained jurisdiction over Ser's person through valid service, the default judgment was erroneous. When Ser appealed the case to the Circuit Court, he effectively brought a fresh proceeding that should have been tried anew rather than dismissed.

Summary generated by law.co from the public-domain opinion. The opinion text itself is public domain.

Key issues

Whether an appeal lies from a default judgment in a forcible entry and detainer action
Whether the service of summons satisfied statutory requirements for personal jurisdiction
The proper standard for Circuit Court review of justice of the peace proceedings on appeal

Procedural posture

Ser appealed a default judgment from a justice of the peace to the Circuit Court, which dismissed the appeal; Ser then appealed that dismissal to this Court.

Authorities cited

No cited authorities resolved to law.co cases yet.

Opinion · public domain

majority opinion

Tompkins, J.,

delivered the opinion of the Court.

This was an action of forcible entry and detainer, brought by .Henry Bobst before a justice of the peace of Montgomery county. Judgment by default was given before the justice, against the defendant, Adam Ser. To reverse this judgment, this appeal is taken.

When the cause came into the Circuit Court, on the appeal, the plaintiff, Bobst, moved to dismiss it, because the judgment of the justice was by default, and no motion was made by the appellant to set the same aside before the appeal was taken.

The 11th section of the act of 28th of January, 1839, p. 47, gives to the party aggrieved by the judgment of the justice, in any ease of forcible entry and detainer, or unlawful detainer, an appeal, except from a judgment of non-suit, or by default. I am not informed of any law which allows the appeal from a judgment by default, in this action, in ease the appellant move the justice to set the same aside before the appeal is taken. The appeal, however, was allowed by the justice, and taken by the defendant. Before the cause was dismissed-from the docket of the Circuit Court, that court should have examined whether a judgment were correctly given by the justice* or rather it was the duty of the counsel of the appellee to show to the Circuit Court that such judgment was correctly given. The 8th section of the act concerning forcible entry and Retainer, p. 278 of the Digest of 1835, directs the summons to be served, by reading the complaint and summons to the defendant, or delivering him a copy thereof, or by leaving such copy at his usual place of abode, with some white member of his family above the age of fifteen years, and explaining to such person the contents thereof.

The return in this case is — “Executed the within, by leaving a copy of the within at the dwelling-house of the said Adam Ser, with his wife, and reading the same to his wife, on the 20th day of February, 1843.”

It may be admitted, that by the words, “the within,” used in the return, the constable intended to say the copy of the summons and complaint. A man may have several dwelling houses, some of which may be rented. It would have been better to have returned the copy left at his “usual place of abode,” as in the law. We may intend the defendant’s wife to be “ some white member of his family,” although man and wife sometimes live apart; but it cannot be presumed that a man’s wife is necessarily above fifteen years of age. The law allows marriages at an earlier age. The justice of the peace, then, had not in this case taken jurisdiction of the person of Adam Ser, the defendant; — then he entered the judgment by default erroneously. The regular course to be pursued by the appellant would, perhaps, jhave been, (had the justice not allowed the appeal,) to apply to the Circuit Court under the provisions of the 37th section of the act of 28th January, 1839, p. 49, to compel the justice to allow the appeal. But this cause had found its way into the Circuit Court, and it is evident that the justice cannot give judgment by default on such a return. The Circuit Court should, then, without regarding any error, defect, informality, or imperfection, in the proceedings of the justice, have proceeded to hear, try and determinethe same anew, as if it had originated in that court. (See sec. 36 of said act, p. 49.) The appellant, by bringing up the cause, had dispensed with the necessity of a regular summons before the justice. The Circuit Court committed error in dismissing the cause from its docket, and, for this reason, its judgment must be reversed, and the cause remanded.