ADAMS v. STOCKTON ET AL

H.K. Bente and Fred A. Benz for appellant.

(1) Defendants' (respondents') several, separate answers of general denials of plaintiff's allegations of petition, were waived and no defense may be founded thereupon. Price v. Mining Co., 83 Mo. App. 470; Adams v. Trigg, 37 Mo. 141; Bank Stone v. Prickett, 93 Mo. App. 292. Since in being followed (a) by their (defendants') confessions and their mere conclusions which are equivalent to no averments. Levins v. Rovegno, 71 Cal. 273, 278; Piggott v. Denton, 46 S.W.2d 618; Lee v. Grocery Co., 55 S.W.2d 406; Stock Yards Co. v. Grain Co., 279 S.W. 771. (b) In trying to justify their several acts and to avoid responsibility therefor, which, under the provisions of Secs. 776 and 800, Mo. St. 1929, are inconsistent theories or pleas, since the truth of one defense necessarily disproves the other. Finley v. Williams et al., 29 S.W.2d 103; Bell v. Campbell, 123 Mo. 1; Cole v. MacDaniel, 33 Mo. 365. (c) And tender no issues herein at all and are equivalent to no answer, which constitutes default, which thus entitles plaintiff (appellant) to judgment as prayed, regardless of the extent of the evidence offered. Cowell v. Ind. Co., 326 Mo. 1103, 1112; James v. Chand. Co., 30 S.W.2d 118; Ambruster v. Ambruster, 31 S.W.2d 28; McKee v. Cottle, 6 Mo. App. 416, 417; Bank v. Int'l. Co., 217 Mo. App. 131. (2) Defendants (respondents) having defaulted of answer, as set out in point 1 hereof, plaintiff (appellant) was entitled to judgment as prayed and the giving of Instruction No. P-1 for the reasons set out in point 1, supra. (3) A special and preclusive statute takes precedence over a general statute. State v. Showers, 34 Kansas, 269, 272; Williamson v. Thom., 194 Mo. App. 173. (a) And our Landlord and Tenant Act (Secs. 2573 to 2628, Mo. Stat. 1929), is special and preclusive in its character. Haake v. Trust Co., 54 S.W.2d 459; Tooker v. Leake, 146 Mo. 419; Warden v. Ry. Co., 78 Mo. App. 664, 666. (b) The Landlord and Tenant Act remedy is statutory, special in its nature and the proceeding is summary, the object being to give an injured landlord a means of speedily obtaining restitution of his premises, which the general statute and common law did not then afford. Wolff v. Shinkle, 4 Mo. App. 197, 198; Horn v. Peteler, 16 Mo. App. 438. (c) Our Landlord and Tenant Act supersedes the common-law remedy by distress for rent. Welch v. Ashby et al., 88 Mo. App. 400, 404. (d) And those provisions necessarily preclude them from being done in any other manner. Keane v. Strodtmen, 323 Mo. 161; Henderson v. Koenig, 168 Mo. 356; Gruender v. Frank, 267 Mo. 713, 720; Pipe Line Co. v. Stewart, 35 S.W.2d 627; Schlafly v. Baumann, 108 S.W.2d 363. (4) Mrs. Randall's Affidavit of complaint states no cause of action and confers no jurisdiction. Paddock v. Somes, 102 Mo. 226, 235; Riggs v. Moise, 128 S.W.2d 632. (a) And is inadequate to support the judgment for rent and possession of the premises, since a judgment may not be broader than the issues made by the pleadings, regardless of the scope of the evidence. State v. Pearcy, 29 S.W.2d 83; Hecker v. Bleish, 319 Mo. 149, 175; Fielder v. Fielder, 6 S.W.2d 968. (5) Service of process is mode authorized by law is a prerequisite to jurisdiction, under the Landlord-Tenant Act which contains no provision for any service or execution by a sheriff or his deputy, as was done in this case. State ex rel. v. Wright, 88 S.W.2d 427; Haake v. Trust Co., 54 S.W.2d 459; Yowell v. Mace, 221 Mo. App. 85. (a) Which jurisdiction must appear on the face of the record. Warden v. Ry. Co., 78 Mo. App. 664, 666; Patchen v. Durrett, 116 Mo. App. 437, 440; State v. Meyers, 26 S.W.2d 816, and (b) That no intendments may be allowed in justice courts. State v. Hobbs, 218 Mo. App. 448, 456; Martindale v. Hall, 132 S.W.2d 1041, and (c) That a void service of any writ is equivalent to no service. Henman v. Westheimer, 110 Mo. App. 191, 197. (b) Defendants' Exhibits No. 1 to No. 5, inclusive, especially No. 1, Summons, were incompetent as evidence, being void on their faces, were erroneously admitted into evidence in this cause, for the reasons: (a) That any void instrument is inadmissible as evidence in any case. Burr v. Mathers, 51 Mo. App. 470. (b) And this instrument No. 1, (Summons), shows on its face, to be void, since it was issued under the Landlord-Tenant Act, Secs. 2573 to 2628, Mo. Stats. 1929, and that no constable or an appointee therefor, served this summons, as provided in Secs. 2183, 2193, 2197, 2607 and 2609, Mo. Statutes, 1929. Miehl v. Securities Co., 227 Mo. App. 786, and that (c) The Deputy Sheriff, Louis J. Meisner's return shows void because Deputy Sheriff Miesner, had no authority either to serve same or to make return thereupon, in his own name as such deputy. State ex rel. v. Fisher, 230 Mo. 325, 339; Atwood v. Reyburn, 5 Mo. 533, 534; Stuckert v. Thompson, 181 Mo. App. 518. (d) And it was therefore, erroneously admitted into evidence. Burr v. Mathers, 51 Mo. App. 470; State ex rel. v. Fisher, 230 Mo. 325, 339; Cooksey v. Ry. Co., 17 Mo. App. 132. (e) And the said deputy sheriff's return thereon is not amendable to permit said Miesner to show that he acted in some other capacity. Mitchell v. Shaw, 53 Mo. App. 652. (7) Defendants' Exhibit No. 2 was incompetent as evidence and was erroneously admitted into evidence for the reasons set out in Point 6, supra. (8) Defendants' Exhibit No. 5, was incompetent as evidence in this cause, his record showing that he had no jurisdiction therein, for the reasons set out in Points 1 to 7, inclusive supra. (9) A judgment is void and is entitled to no respect and may be impeached collaterally by anyone whose right it conflicts, where it affirmatively appears on the face of the record that the court rendering it did not have jurisdiction of the subject matter, or of the person of the defendant, and did not have authority to grant the particular relief it did grant therein. Sanders v. Savage, 129 S.W.2d 142; Corporation v. Box Co., 97 S.W.2d 862; Gray v. Clement, 286 Mo. 100. (a) And all acts under a void judgment, are also void. Cemeteries Co. v. Strother, 119 S.W.2d 762. (b) And an officer is bound to know the law and to take notice that he has no valid writ. Rousey v. Wood, 57 Mo. App. 650; Linck v. Troll, 84 Mo. App. 49, 55; State ex rel. Clement v. Rainey, 99 Mo. App. 218, 220. (c) Every unauthorized entry upon another's land is trespass. Kerby v. Pipe Line Co., 4 S.W.2d 857; Ry. Co. v. Reynolds, 89 Mo. 146; Bert v. Rhodes, 258 S.W. 40. (d) For which damage will be presumed. King v. St. Louis 250 Mo. 501, 513; State to use v. Rayburn, 22 Mo. App. 303, 305. (e) For which wrong all tort-feasors (respondents herein), who have done any part of such wrong, or even contributed their will thereto, are each liable to pay damages for the entire injury. State ex rel. Trimble et al., 302 Mo. 699; Lowery v. Kansas City, 337 Mo. 47; Kneezle v. Milling Co., 113 S.W.2d 817. (f) Including Justice Stockton who rendered the void judgment. Palzach v. Gerichten, 10 Mo. App. 424. (g) The intent of such tort-feasors therein, being immaterial; the act done fixes the liability. Dyer v. Tyrrell, 142 Mo. App. 471, 476. (h) The rule that a public official is not responsible for his official determination, however erroneous and however malicious the motive, is applicable only where he had jurisdiction. Ray v. Dodd, 132 Mo. App. 444, 448. (i) An agent's or a deputy's knowledge is equivalent to his principal's knowledge, and the knowledge of Deputy Sheriff Miesner imparted to him by the record herein was equivalent to the knowledge of the sheriff, Eaton, who had to take notice thereof and to know that Mrs. Ransdall's original complaint stated no cause of action, and that the summons to John Adams was not legally served upon him, since the deputy sheriff had no authority to serve same, and that the justice, Stockton, took and had no jurisdiction to render any judgment in that cause, and that the writ delivered to Sheriff Eaton was void, and he therein took and had no jurisdiction to execute it. Gestring v. Fisher, 46 Mo. App. 603; Carpet Co. v. Crawford, 127 Mo. 356; Point IX, b, supra; State to use v. Moore, 19 Mo. 369; Stephenson v. Porter, 45 Mo. 358, 360; State ex rel. v. Padberg, 340 Mo. 667; State ex rel. v. Edmundson, 71 Mo. App. 172, 178; Clark v. West, 126 S.W.2d 569. (j) For the reasons aforestated, it was error of the trial court in giving Instructions No. 7 and No. 8. (10) Since appellant's property and rights were unjustly invaded by respondents, as aforesaid, and thereby deprived of his blacksmith profits, public patronage and good will, self respect and loss of earning ability now and ever after, inconvenience and mental pain suffered, it was erroneous of the trial court in refusing to permit appellant to show same, at trial. Hyre et ux. v. Becker, 18 S.W.2d 137; Murphy v. Building Co., 90 Mo. App. 621; Patrick v. Ins. Co., 118 S.W.2d 116; McGinniss v. Ry. Co., 21 Mo. App. 390, 411; Ritchie et ux. v. Board, 297 S.W. 435; 17 C.J. 718 to 720, par. 55, note 25.

F.M. Brady and Edwin F. Brady for respondents.

(1) In an action for damages where it is alleged that the defendants entered into a conspiracy and agreement to injure the plaintiff by trespasses against him and his property, which was alleged to have been carried out and the plaintiff dispossessed and evicted from property which he was entitled to hold and he was thereby damaged and his property injured and damaged and that on account of the wrongful acts of defendants he suffered other named injuries and damages, and wherein large actual and punitive damages were claimed, the defendants could unite a general and a special denial in the same answer, and the affirmative defenses set up in the several separate answers were not statements of new matter inconsistent with the general denial. Field v. National City Bank of St. Louis, 121 S.W.2d 769, 774; Mitchell v. St. Louis Smelting Co., 202 Mo. App. 251, 215 S.W. 506; Sec. 776, R.S. 1929. (2) It is good pleading under the statute for an answer to contain first a general denial and then a statement of facts, which, if true, bar recovery by plaintiff. Field v. National Bank of St. Louis, supra; Mitchell v. St. Louis Smelting Refining Co., supra; Thurston v. Kansas City Term. R. Co., 168 S.W. 236, 237; Ruff v. Miller, 92 Mo. App. 620. (3) In all cases where lands and tenements are rented and default is made in payment of rents at times agreed upon the landlord shall be entitled to dispossess the tenant and all subtenants and recover possession of the premises rented. Sec. 2606, R.S. 1929. (4) When any rent has become due and been demanded by landlord from the tenant and payment has not been made, the landlord may file a statement verified by affidavit, with any justice of the peace in the county, setting forth the terms on which property rented, amount of rent due, that payment had been demanded and not made, and describing the property rented, the justice shall issue a summons directed to tenant, requiring him to appear before him on day therein named, and show cause why possession of the property should not be restored to plaintiff; which summons is to be executed at least five days before return day, by reading to or delivering defendant a copy. Upon return of summons executed, the justice hears cause, and if it appear rent is due, payment has been demanded and payment has not been made, and is not tendered before the justice, on the hearing, the justice shall render judgment that landlord recover possession of the premises and the rent due, and costs, and issue execution. Secs. 2606-2607-2608-2609, R.S. 1929. (5) In this case rent was due, payment demanded and payment not made. Proper verified statement was filed containing all necessary averments to give justice jurisdiction of the cause of action then and thus instituted. Shields v. Stillman, 48 Mo. 82. (6) Where a justice of the peace acts within the sphere of his office, he is not liable in a civil action for an error of judgment, even though he acts corruptly, the only remedy given the injured party being a criminal prosecution. And under sections 2606-2607-2608-2609, Revised Statutes 1929, it would seem there could be no serious argument in this case that respondent, N.B. Stockton, was not acting within the sphere of his office in connection with all his acts herein. Lenox v. Grant, 8 Mo. 254; Stone v. Graves, 8 Mo. 148. (7) All the acts which, from the beginning to the end of a suit, the law requires a justice of the peace to perform, are, it seems, to be regarded as judicial and as involving only that responsibility which attends all judicial officers; in issuing an execution a justice of the peace is not to be held responsible as a mere ministerial officer. Wertheimer v. Howard, 30 Mo. 420. (8) The rule is well established that the process, judgment, or order of a court having jurisdiction, if valid on its face, affords complete protection to a sheriff or constable from liability for any proper or necessary act done in its execution, and that he need not concern himself in regard to the legality of the claim on which it is issued. State ex rel. Mayer v. O'Neill, 151 Mo. 67, 52 S.W. 241; State ex rel. Athletic Tea Co. v. Cameron, 216 Mo. App. 683, 273 S.W. 746; State v. DeWitt, 107 Mo. 573, 17 S.W. 900; White v. Henderson, 218 Mo. App. 611, 265 S.W. 911. (9) And this is true even though the officer may have had notice of defects in the prior proceedings. Owls Nest v. Haines, 189 Mo. App. 433, 176 S.W. 513. (10) Where, as here, the court issuing the writ has authority to issue the writ and same is fair on its face, the sheriff was not required to look beyond the writ or to inquire as to defects or to pay heed to defects even if called to his attention and could not determine whether the justice had authority to issue the writ, but must execute same at his peril, and is protected by the law. State ex rel. Mayer v. O'Neill, supra; Owls Nest v. Haines, 189 Mo. App. 433, 176 S.W. 513, supra. (11) Every sheriff is required to execute all process directed to him by legal authority, including writs of replevin, attachments and final process issued by justices of the peace. Sec. 11518, R.S. 1929. (12) "Final process" is the last process in a suit and comprehends those writs which are necessary to secure the successful party the benefit of the suit. 50 C.J. 445; Black's Law Dictionary (3 Ed.), page 1433. (13) Courts of Appeal will not reverse the judgment of a lower court, unless it shall appear that error has been committed by the trial court against the appellant materially affecting the merits of the action, and the refusal of the trial court to her evidence upon any element of damage claimed or to instruct the jury upon any phase of the alleged injury would not cause a reversal of the case, if upon consideration of the whole case it appears that such refusal did not materially affect the merits of the action and that right determination of the action was reached. Sec. 1062, R.S. 1929; Hoagan v. Railway Co., 150 Mo. 36; O'Neill v. Kansas City, 178 Mo. 91; Lewis v. McClellan, 1 S.W.2d 247; Swope v. Ward, 185 Mo. 316. (14) Matters of exception, such as the giving of peremptory instructions and directed verdicts, cannot be considered on appeal unless embraced in motion for new trial and preserved in bill of exceptions and abstract of record. Sec. 1061, R.S. 1929; Baade et al. v. Cramer, 213 S.W. 121; Spotts v. Spotts, 331 Mo. 917, 55 S.W.2d 977. (15) Under the situation obtaining at the trial of the case in circuit court, it is very apparent that the appellant was not entitled to have given to the jury his instruction No. P-1, as under the rulings of the court there had been no evidence admitted to support any verdict for loss of earnings and profits as a blacksmith or loss of income or of humiliation, disgrace, mental anguish and pain, and it would have been improper to give the instruction as submitted and the same was properly refused. Jackson v. Southwest Missouri R. Co., 156 S.W. 1005; Pappas Pie Baking Co. v. Stroh Bros. Delivery Co., 67 S.W.2d 793.