Hill Behan Lumber Co. v. Bankhead

884 S.W.2d 318, 1994 Mo. App. LEXIS 1317, 1994 WL 424646

• Court: Missouri Court of Appeals
• Decided: August 16, 1994
• Docket: No. 64816
• Status: Published

Opinions

SIMON, Presiding Judge.

Appellants, Hubert Bankhead and Barbara Bankhead, appeal the order of the Circuit Court of the City of St. Louis, denying their motions to dismiss. Appellants contend that the trial court erred in denying their motions to dismiss for the reason that Supreme Court Rule 54.20(b) requires an affidavit of service by an officer making a return outside the state in order to constitute proper proof of service and further, lacking proper proof of service, which was no longer curable, the trial court did not have personal jurisdiction over appellants and the default judgment rendered against them was therefore void.

On April 20, 1990, respondent, Hill-Behan Lumber Co., filed a petition in the Circuit Court of the City of St. Louis against appellants and other defendants, John F. Rekart, trustee for the Bank of Edwardsville, Clifton W. Gates, trustee for The Gateway National Bank of St. Louis, the City Counselor of the City of St. Louis, trustee for Comptroller, City of St. Louis, and Rand Juliano, trustee for the Bank of Edwardsville, to enforce a mechanic’s lien on property (Count I) for materials used by appellants on an open account to improve property located in the City of St. Louis and in Count II to recover $2,065.18 on an open account. The petition alleged that the materials in question were provided on May 4, 1989. The lien was filed on October 27, 1989. Respondent’s petition alleged that appellants were residents of Illinois.

The summons directed to appellants were issued on April 24, 1990. According to the return forms, service of process was allegedly made on April 28,1990 by a deputy sheriff of Madison County, Illinois, whose return indicated service was made by delivering a copy of the summons to Doug Bankhead, appellants’ son. On the summons there was a printed “Directions for Service” form, providing directions for service outside the State of Missouri and containing the certification required for service outside Missouri. Following service, the Madison County SherifPs Department made the return as follows. A stamp, with handwritten information and signature in bold face, was imprinted on the return of service form:

I certify that this document has been served in accordance with Illinois State Statutes governing service of process. Particulars of the specific service are contained in the records of the Sheriff s Headquarters, 405 Randle St., Edwardsville, II. 62025

Doug Bankhead (handwritten)

son

BOB CHURCHICH, Sheriff

By /s/B Harrell/s/

Date of Service 4/28/90

On September 6, 1991, the case was called but appellants and other defendants did not appear and were in default. On September 19, 1991, the trial court issued its Findings, Judgment and Decree, awarding respondent judgment on Count I for $9,093.41 plus interest, with a mechanic’s lien on the property in question and on Count II, the trial court awarded respondent judgment on the open account claim for $2500.33, plus interest.

On July 6, 1993, each appellant filed a “motion to dismiss”, pursuant to Rules 74.-06(b)(4) and 55.27. The motions alleged that: (1) the officer’s return does not contain an affidavit of service as required by Rule 54.-20(b)(1); (2) prior to default judgment being entered against them, appellants had not appeared before the trial court; and therefore (3) the trial court does not have jurisdiction over the appellant and the default judgment is void ab initio; and further (4) the time to amend and cure the insufficiency of process as allowed by Rule 54.22 has run.

Appellants’ motions were heard by the trial court and taken under advisement on August 6, 1993. At the hearing, respondent offered three exhibits into evidence.

The first exhibit consists of correspondence, an affidavit, and subpoena from Lt. Baetz of the Madison County Sheriffs Department. The correspondence states that Lt. Baetz and Deputy Weigers would not be able to attend the motion hearing, however, they would be able to appear if respondent was able to obtain a continuance. In his affidavit, Lt. Baetz states that: (1) he is a deputy sheriff and the Director of Administrative Services for the Madison County Sheriffs Department; (2) he is responsible for and keeper of all records of service of process pertinent to the operation of the department; and (3) that he is under subpoena for the State of Wisconsin for the day of the hearing and therefore is unable to attend the hearing. Respondent further offered a copy of the subpoena of Lt. Baetz by the State of Wisconsin for the date of the hearing.

Exhibit # 2 consists of what appear to be two copies of the “log sheets” of the Madison County Sheriffs Department indicating service upon each of appellants by service upon their son. Each copy is notarized by Barbara Harrell as “ ‘A True Copy’ of the original record of service as maintained on file with the Madison County Sheriffs Depart/ ment ...”. The “log sheet” appears to be a form that the serving officer fills in after service is completed. These forms reflect, in pertinent part, with handwritten notations in bold:

SERVED TO: Doug Bankhead (son)

SERVED DATE: 4-28-90 SERVED TIME: 10:50AM

SERVED SEX/AGE: m/19 DEF NAME: BANKHEAD, HUBERT D

SERVED ADDRESS: .> DEF ADD: 609 RIGGIN RD

CITY/STATE/ZIP: TROY, IL.62294

served by Weigers #81

ATTEMPTS: DBA H B D ASSOCIATES

REMARKS: MAY 20 90

A similar “log sheet” was offered by respondent, designating service upon Barbara Bankhead, as well.

Respondent next offered into evidence a copy of a fax sent by Barbara Harrell to respondent on August 5, 1993. This correspondence concerns Madison County Sheriffs Department service of process policy, which provides:

RE: SERVICE OF PROCESS THE ATTACHED PROCESS HAS NOT BEEN SCHEDULED FOR SERVICE BY OUR DEPARTMENT. IT IS RETURNED TO YOU WITH THE ADVICE THAT THE MADISON COUNTY SHERIFF’S DEPARTMENT DOES NOT SUPPLY ANY TYPE OF SUPPLEMENTARY AFFIDAVIT OF SERVICE ON PROCESS SERVED BY SHERIFF’S DEPUTIES.

THE SERVICE OF PROCESS IS CERTIFIED IN THE NAME OF THE SHERIFF ON THE ORIGINAL OF SAME AND A RECORD OF SERVICE IS AVAILABLE IN THE SHERIFF’S DEPARTMENT UPON DEMAND. MANY STATE COURTS REQUIRE AN AFFIDAVIT OF CERTIFICATE, SIGNED BY THE DEPUTY SHERIFF WHO SERVED THE PROCESS, TO BE FILED WITH THE RETURN. THE MADISON COUNTY SHERIFF’S DEPARTMENT WILL ONLY PROVIDE A RETURN WITH A STAMPED CERTIFICATION ON THE FACE OF THE DOCUMENT, SIGNED BY THE PROCESS CLERK, ATTESTING TO THE SERVICE.

SERVICE OF PROCESS IS MADE AND RETURNED IN ACCORDANCE WITH THE LAWS OF THE STATE OF ILLINOIS AND THE SHERIFF OF MADISON COUNTY IS NOT BOUND BY THE LAWS OF OTHER STATES REGARDING AFFIDAVITS OF CERTIFICATION OF SERVICE.

HOWEVER, IF YOU WISH THIS DEPARTMENT TO MAKE SERVICE KNOWING THE ABOVE, RETURN THE DOCUMENT TO US, WITH THE APPROPRIATE FEE AND THE LETTER STATING APPROVAL FOR SERVICE AND WE WILL SCHEDULE FOR SERVICE.

SINCERELY,

LT. CONRAD E. BAETZ

DIRECTOR OF ADMINISTRATIVE SERVICES

MADISON COUNTY SHERIFF’S DEPARTMENT

Subsequently, on August 25,1993, the trial court denied appellants’ motions to dismiss. Appellants filed their notice of appeal on September 23, 1993.

On appeal, respondent has filed a second motion to dismiss “on the grounds that Appellants’ Points Relied On do not comply with Rule 84.04(d) and, therefore, Appellants have failed to preserve any issue for appellate review.” We have reviewed the points and arguments and find that they are sufficient, but not fully in compliance with our Rules. Motion denied.

We shall consider appellants’ two points together. Essentially, appellants argue that the trial court improperly denied their motions to dismiss for the reason that the officer’s return does not satisfy the requirements of Rule 54.20(b)(1), which sets forth what must be included in an officer’s return of service when service is accomplished outside of the state, and since the officer’s return did not comply with Rule 54.20(b)(1), the trial court did not have personal jurisdiction over the appellants and the judgment was void. Further, appellants argue that the defect in service was not curable.

Respondent argues that the trial court properly denied appellants’ motions to dismiss because the trial court correctly examined evidence of service beyond the face of the return, in that Rule 54.20(b)(1) authorizes trial courts to examine any evidence in determining whether service was properly made.

Section 54.20(b)(1) provides:

(b) Outside the State — Officer’s Returns— Affidavits of Service

(1) Every officer to whom summons or other process shall be delivered for service • outside the state shall make an affidavit before the clerk or judge of the court of which affiant is an officer or other person authorized to administer oaths in such state stating the time, place and manner of such service, the official character of the affiant, and the affiant’s authority to serve process in civil actions within the state or territory where such service was made. The court may consider the affidavit or any other evidence in determining whether service has been properly made.

Under the rule the officer making the return must attest to his official character and authority to serve process within the state, as well as the place, time, and manner of service. State ex rel. Tinnon v. Mueller, 846 S.W.2d 752 .(Mo.App.1993). In the instant action, there was no certification as to the place, tíme, and manner of service, nor to the affiant officer’s official character and authority to serve process within the State of Illinois.

Clearly such certification is required. We have consistently held that in the absence of certification required by the Rule, the service is “manifestly deficient” and does not confer personal jurisdiction over the defendant. Industrial Personnel Corp. v. Corcoran, 643 S.W.2d 816, 818[1] (Mo.App.1981).

A judgment entered against a party by a court lacking personal jurisdiction over such party is void. State ex rel. Houston v. Malen, 864 S.W.2d 427, 430[l-3] (Mo.App.1993). The trial court lacked personal juris diction over appellants at the time the default judgment respondent seeks to enforce was rendered. As such, the judgment was void. Further, a default judgment, being void due to lack of jurisdiction, remains void forever and any kind of proceeding to cancel it is proper. Gerding v. Hawes Firearms Co., 698 S.W.2d 605, 607[5] (Mo.App.1985).

Respondent contends that the trial court was allowed to examine “any other evidence” to determine whether service was properly made. Further, respondent contends that “upon examination of the record presented to the trial court, it is amply demonstrated that the Bankheads were in fact properly served on April 28,1990, as certified by the Sheriff of Madison County, Illinois.” Specifically, respondent refers to the returns of service, as well as Exhibits # 1-3.

The returns clearly do not comply with Rule 54.20(b)(1). The only information we have found on the returns is the stamp and signature by a notary public, and a handwritten designation referring to appellants’ son. There is no reference to place, time, or manner of service, nor to the official capacity or authority of the person who served the process in question. Thus, the information provided is clearly deficient and not in conformity with the Rule.

Respondent offered exhibit # 1, which consists of correspondence, an affidavit, and a subpoena concerning Lt. Baetz, the Director of Administrative Services of the Madison County Sheriffs Department. Respondent offers this exhibit to show “that these witnesses were willing to appear at a later date to testify service was properly made”. We first note that the exhibit does show that these officers, who did not appear, were under subpoena from Wisconsin on the date in question. However, no where can we discern any relevant evidence from this document relating to proper service. Exhibit # 1 does not assist in establishing compliance with the Rule.

Respondent offered Exhibit #2, the “log sheets” of the Madison County Sheriffs Department, claiming that these records show the time, place, and manner of service and “demonstrate the official character and authority of the officer who made service”. We shall assume that respondent is referring to the handwritten designation of “served by Weigers #81” in its blanket statement to satisfy the official character and authority to serve requirement. This evidence merely reflects who served the process and is not sufficient to satisfy the official capacity and authority requirement of the Rule.

Finally, respondent offers Exhibit # 3 which consists of a “fax” sent to respondent from the Sheriffs Department stating that it would not provide the certification as required under Missouri law. Respondent offers this exhibit to show “that the way service was done in this case was no different than the way it’s done in any other case where Madison County, Illinois, receives a process in a civil action from another state”. Again, this does not assist in curing the defective return. The return must be in compliance with Missouri law. Further, as appellant contends, this “fax” put respondent on notice as to the necessity of compliance with Rule 52.20(b)(1).

Respondent contends that appellant, Hubert Bankhead, has waived his right to personal jurisdiction because he entered an appearance by filing notice of exemptions prior to his motion hearing. This alleged entry occurred after the default judgment was entered. Actual knowledge of the pen-dency of litigation, if true, does not confer jurisdiction. Industrial Personnel, 643 S.W.2d at 819[7]. The court’s jurisdiction is determined by the return of service, not by after the fact evidence of actual knowledge. Mueller, 846 S.W.2d at 754[2]. Where the return is deficient on its face, as is here, the court acquires no jurisdiction. Industrial Personnel, 643 S.W.2d at 819[7],

Respondent contends that the trial court is able to consider other evidence to establish proper service pursuant to Rule 54.20(b)(1) and that Rule 54.22, which grants the trial court discretion to allow process, return or proof of service to be amended, no longer contains a one year time limitation on amendments to the return of service. We need not consider respondent’s allegations because, as stated previously, the other evidence submitted by respondent does not cure the defective service.

The order denying the appellants’ motions to dismiss is reversed and remanded to the trial court with directions to relieve appellants from the default judgment in accordance with Rule 74.06.

REVERSED AND REMANDED WITH DIRECTIONS.

PUBLOWSKI, J., concurs. GRIMM, J., dissents. .