Smoot v. Judd

83 S.W. 481, 184 Mo. 508, 1904 Mo. LEXIS 290

• Court: Supreme Court of Missouri
• Decided: November 29, 1904
• Status: Published

Opinions

MARSHALL, J.

This is a bill in equity to set aside a judgment of the circuit court of Barton county rendered on September 18,1891, in favor of Gr. S. Judd and against Ella Gr. Smoot and Samuel N. Smoot, and' the execution issued thereunder, and the sheriff’s deed to certain land in that county made to said Judd as purchaser at such execution sale, and also to set aside a decree in partition, rendered on September 3, 1894, in a certain suit wherein said Judd was the plaintiff and Lewis Cordon et al. were’ the defendants, and also to set aside the sheriff’s deeds in partition to the defendants Amos Brand and William Jackson, the.purchasers of said land at the partition sale, and to recover of said Judd, Brand and Jackson the rents and profits of said land since September 29, 1894, and to declare the plaintiff entitled to an undivided one-fourth interest in the land. There was a decree for the defendants in the trial court, and the plaintiff appealed.

Compressed into as small a space as possible the facts underlying the controversy are these:

Ella C. Smoot and Samuel N. Smoot are and at all times hereinafter mentioned were husband. and wife. Mrs. Smoot owned lots 4, 5 and 6, in Jasper, Missouri, but it does not appear whether it was her separate estate or only a legal estate. Being such owner, she and her husband, on April 15, 1887, executed and delivered to C. S. Judd their promissory note for $683.61, payable one day after date, with eight per cent interest, which recited to-be for value received “for money • this day borrowed of him, and to secure the payment of which, a mortgage is this day executed on lots 4, 5 and 6, in Jasper, Missouri.” Tlaereafter at some time not disclosed by tbe record, .at tbe request of tbe Smoots, Judd released the mortgage. Tbe debt was not paid, and on July 28, 1891, tbe debt being then over four years past due, Judd instituted suit in tbe Barton Circuit Court against Mr. and Mrs. Smoot. Tbe petition did not describe tbe defendants as husband and wife. A summons was regularly issued, and was returned by tbe sheriff as having been served personally upon both Mr. and Mrs. Smoot. Mr. Smoot took tbe papers to Mr. John ,B. Cole, an attorney of tbe bar of that court, and directed him to look after tbe matter, saying, however, be did not want to run up any expense in tbe case, but only wanted to get time in which to pay tbe debt. Tbe attorney was under tbe impression that be was to represent both Mr. and Mrs. Smoot in tbe matter, but the record does not afford any competent evidence that Mrs. Smoot authorized her husband to act for her in employing tbe attorney. Tbe case was allowed to go by default, and on September 18, 1891, a personal judgment was rendered against Mr. and Mrs. Smoot, for $925.13. On tbe 3d of February, 1891, Mrs. Smoot’s brother, Peter A. Gordon, died leaving certain land in Barton county, and Mrs. Smoot inherited an undivided one-fourth interest therein. On January 20, 1892, an execution was issued on said judgment and was levied on Mrs. Smoot’s interest in tbe land. Mrs. Smoot then went to see tbe attorney, Mr. Cole, who bad been previously employed by her husband, and asked him to try to arrange the matter so that they could have six months in which to redeem tbe “land after it was sold under execution. She also saw Mr. Judd’s attorney, Mr. Wray, and asked him to give them such time to redeem. Accordingly, Mr. Cole entered into negotiations with Mr. Wray looking to such an arrangement, with tbe result that a written agreement was entered into giving tbe Smoots twelve, instead of six, months, in which to redeem tbe land after it should' be sold under execution. Tbe land was then sold on March 10,1892, and Jndd became the purchaser of Mrs. Smoot’s interest therein for $510, and received a sheriff’s deed therefor.

Thus the matter stood until October 30,1893,*when, the time for redemption having expired and the Smoots having done nothing, Judd instituted a suit for the partition of the land. On February 23, 1894, she filed an answer in the said case, which recited that it was filed by leave, in which she denied that she had ever conveyed her interest in the land to Judd or authorized any one to do so for her, but she did not refer to or call in question in any way the validity of the judgment of Judd against herself and her husband. On motion the court struck out the answer, and she took no further steps in the case. On April 14, 1894, a decree in partition was rendered and on September 3, 1894, the land was sold under that decree, and the defendants Brand and Jackson became the purchasers and received the sheriff’s deeds therefor, entered into possession and have remained in possession ever since. It is conceded that at some time, the date is not disclosed by the record, Mrs. Smoot sued the sheriff on his official bond, for $3,000 damages, for the loss of her land, by the sale under said personal judgment, alleging that his return upon the summons that he had served it upon her personally was false, and that upon a-trial of that case she recovered a judgment for nominal damages.

On August 18,1895, Mrs. Smoot instituted this suit in equity. The petition alleges nearly all the facts hereinbefore set out, and. predicates a right to recover upon the falsity of the sheriff’s return aforesaid. The action was brought agaist Judd, Brand, Jackson and Mr. Smoot. Judd and Smoot, though personally served, made default, and the action is defended by Brand and Jackson, the purchasers of the property at the partition sale. The case was tried in the circuit court and resulted in a decree for the defendants. The plaintiff appealed to this court where the judgment was reversed and the cause remanded on March 29, 1901. [Smoot v. Judd, 161 Mo. 673.] This court held that the circuit court erred in finding the fact to be that the sheriff’s return was not false, but remanded the case for retrial, with leave to the defendants to amend their answer so as to show that though the return was false' in showing that Mrs. Smoot had been served personally, still Mrs. Smoot had in fact been served, by a copy of the .summons having been left with her husband, a member of her family, at their usual place of abode.

On May 7, 1901, the sheriff filed a motion, in the original case of Judd v.' Smoot, asking leave to amend his return on the summons so as to conform to the facts, and so as to show a service by copy as aforesaid, instead of personally. Mrs. Smoot'was notified and appeared and contested the motion. The court granted the ex-sheriff leave to amend, and Mrs. Smoot appealed to the Kansas City Court of Appeals, where the judgment was affirmed. [Judd v. Smoot, 93 Mo. App. 291.]

Thereafter at the September term, 1902, the defendants filed an amended answer, in which the various matters herein referred to are set out, including the judgment allowing the return to be amended, and averring that Mrs. Smoot was' served by copy as aforesaid instead of personally. The reply is a general denial. The case was then tried upon the issues thus joined. The ex-sheriff testified that Mr. and Mrs. Smoot resided at that time at the Commercial Hotel, in Lamar, and that when he went to serve the summons on them, he found Mr. Smoot and served the writ and copy of the petition on him; and when he asked to see Mrs. Smoot, he was told by Mr. Smoot that she was sick and he could not see her, but Mr. Smoot told him to leave the copy with him and to return it as personally served on Mrs. Smoot, and that he did so, “like a chump.” Mr. Smoot testified that the sheriff served only one summons, composed of a single sheet, on him, and that it was served on the west side of the square in front of Van Pelt’s drugstore and not at the hotel, and that the sheriff did not leave anything with him for his wife, and he denied the sheriff’s statements as to what occurred when he served the summons, but admitted that his wife was sick. The other facts set out in the pleadings and herein stated were admitted or proved beyond question. The circuit court entered a decree for the defendants and the plaintiff again appeals.

i;

At some time, not definitely stated, the plaintiff sued the sheriff for damages for false return, and recovered a judgment. If that action was instituted before this suit was begun, it would clearly be a bar to this suit, for even if it should be conceded that the plaintiff was entitled to both remedies, the election to take one, would preclude a right thereafter to pursue the other. [Nanson v. Jacob, 93 Mo. l. c. 345; Nalle v. Thompson, 173 Mo. l. c. 616.] In any event, without regard to which action was begun first, it now appears that the plaintiff prosecuted her suit against the sheriff to a final and successful result. This being true, whatever wrong or loss she suffered in consequence of the alleged false return óf the sheriff, has been compensated for, and she has obtained satisfaction therefor. So that even if it could be conceded that her remedy was double, her wro'ng and loss was single and she could have only one satisfaction, and having received that in the other action, she is no longer entitled -to pursue this remedy. [Rivers v. Blom, 163 Mo. l. c. 448; Bank v. Bank, 130 Mo. l. c. 168.]

But, as hereinafter -pointed out, I am of opinion-that her remedy was confined to an action on the sheriff’s bond, for false return, and that she can not maintain a suit in equity to set aside the judgment or its consequences, because of the falsity of the sheriff’s return showing personal service on her.

u.

When the case was here on former appeal, it was held that while the adjudications in this State had held that a sheriff’s return is conclusive, except in an action against the sheriff for a false return, still in some other jurisdictions, a bill in equity would lie to set aside a judgment, by default, based upon a false return of the sheriff showing service of- the summons upon the defendant, and accordingly it was then held that the return of the sheriff was not conclusive, and that this action would lie. [Smoot v. Judd, 161 Mo. 673.]

With the greatest respect for the learned judge who wrote that opinion and for the equally learned judges who concurred in it, I am constrained to say, I think it does not announce the true rule of law in this State,' and that it should be overruled.

Ever since the decision of this court in Hallowell v. Page, 24 Mo. 590, the law has been uniformly declared in this State to be that “the return of a sheriff on process, regular on its face, and showing the fact and mode of service, is conclusive upon the parties to the suit. Its truth can be controverted only in a direct action against the sheriff for false return. ’ ’ [Heath v. Railroad, 83 Mo. 617; Decker v. Armstrong, 87 Mo. 316; Phillips v. Evans, 64 Mo. l. c. 23; State ex rel. v. Finn, 100 Mo. 429; Delinger’s Admr. v. Higgins, 26 Mo. l. c. 183; McDonald v. Leewright, 31 Mo. 29; Reeves v. Reeves, 33 Mo. 28; Stewart v. Stringer, 41 Mo. l. c. 404; Jeffries v. Wright, 51 Mo. 215; Magrew v. Foster, 54 Mo. 258; Anthony to use, etc., v. Bartholow, 69 Mo. l. c. 194; Bank v. Suman, 79 Mo. l. c. 532 (in this case it was held that parol evidence was inadmissible in aid or support of the return, to show service in fact though not in the manner set out in the return, and was admissible against the return only in a suit against the sheriff for a false return); Bank to use v. Gilpin, 105 Mo. l. c. 23; Feurt v. Caster, 174 Mo. l. c. 297.]

In Stewart v. Stringer, 41 Mo. l. c. 404, Wagner, J., said: ‘ ‘ The courts of some of the States have held that a sheriff’s return is merely prima facie evidence of the facts therein stated; but the law is firmly settled in this State that a defendant can not controvert the truth of the sheriff’s return. If the return of a sheriff to a process is regular on its face, it is conclusive upon the parties to the suit, and the remedy for the party injured is an action against the sheriff for a false return.”

But it is said that, in all the cases cited, the attack upon the sheriff’s return was made in the original case, either before or after judgment and that while it was held that the sheriff’s return was conclusive upon the parties in the original case, it was not held that such a return could not be attacked by a direct proceeding in equity, and upon former appeal it was pointed out that in Alabama, Tennessee, Kansas, Arkansas, Connecticut, Colorado and Illinois, it is held that a false return of the sheriff can be attacked and set aside by a direct proceeding in equity. Accordingly it was held upon former appeal of this case that the alleged false return of the sheriff in the original case of Judd v. Smoot could be attacked and set aside in this suit in equity.

This raises the question whether or not a return of a sheriff can be attacked and, if found to be false, a judgment at law by default founded thereon can be set aside in a direct proceeding in equity.

Cwynne on Sheriffs, page 473, thus states the law: “It is a well-settled principle of the English law, that the sheriff’s return is not traversable, and the court will not try on affidavits, whether the return of a sheriff to a writ is false, even though a strong case is made out, showing fraud and collusion, but the party must resort to his remedy by an action against the sheriff for a false return. In Connecticut, the return of the sheriff on mesne process is held to be only prima facie evidence, but even in that State, he can not falsify it by, his own evidence. In most, and probably in all of the other States in the United States, the rule is established, that as between parties to the suit, in which the return is made, and privies, and the officer, except when the latter is charged in a direct proceeding against him for a false return, the sheriff’s return is conclusive and can not be impeached. A party or privy may not aver the falsity of a return made by a proper officer, without a direct proceeding ■ against the officer, even in chancery.”

Walker v. Robbins, 14 How. (U. S.) 584, was an injunction to restrain the enforcement of a judgment, based upon a marshal’s return of personal service, and which the deputy marshal who served the process testified was false. The .Supreme Court of the United States, speaking through Mr. Justice Catron, said: “Assuming the fact to be that Walker was not served with process, and that the marshal’s return is false, can the bill, in this event, be maintained? The respondents did no act that connects them with the false return; it was the sole act of the marshal, through his deputy, for which he was responsible to the complainant, Walker, for any damages that were sustained by him in consequence of the false return. This is free from controversy; still the marshal’s responsibility does not settle the question made by the bill, which is, in general terms, whether a court of equity has jurisdiction to regulate proceedings, and to afford relief at law, where there has been abuse, in the various details arising on execution of process, original, mesne and final. If a court of chancery can be called.on to correct one abuse, so it may to correct another; and in effect, to vacate judgments, where the tribunal rendering the same would refuse relief, either on motion, or on a proceeding by audita querela, where this mode of redress is in use. In cases of false returns affecting the defendant, where the plaintiff at law is not in fault, redress can only be had in the court of law where the record was made, and if' relief can not be had there, the party injured must seek his relief against the marshal..” Accordingly equitable relief was denied.

Knox Co. v. Harshman, 133 U. S. 152, was a bill in equity to restrain the enforcement of a judgment at law in favor of Harshman and against the county; on the ground that the bonds upon which the judgment rested were void, and upon the further ground that the return of the marshal, showing service of the summons on the county clerk, was false. The Supreme Court of the United States, speaking through Mr. Jus: tice Gray, said: “The officer’s return stated that he served a copy of the summons upon the clerk. If that return were false, yet no fraud being charged or proved against the petitioner, redress could be sought at law only, and not by this bill. [Walker v. Robbins, 14 How. 584.]” Accordingly the judgment of the circuit court dismissing the bill was affirmed.

Stites v. Knapp, Ga. Dec. part II, p. 36, was a bill in equity to restrain a judgment at law, on the ground that the sheriff’s return was false and that the defendant therein had not been served. It was held that if the return was false, the sheriff was liable on his bond, but that the truth or falsity of the return could not be inquired into in the equity case.

Baker v. Morgan, 2 Dow’s Eepts. 526, was a bill in equity to set aside a judgment in ejectment on the ground that the proceedings were irregular, in this, that the return upon the habere issued on the judgment was false in stating that the plaintiff in ejectment had been put into possession, and that the fact was that the mother of the plaintiffs had voluntarily given the plaintiff in ejectment possession, while they were minors. Lord Eedesdale said, “that equity might try whether a judgment was obtained by fraud, but he never heard of equity trying the proceedings at law for irregularity.” Lord Eldon expressed the' same view. Accordingly a decree by the circuit court in favor of the plaintiffs was reversed by the House of Lords.

Hunter v. Stoneburner, 92 Ill. 75, was a bill in equity to set aside a judgment in partition and a sale thereunder, on the ground that the plaintiff had not been served with process, and for other reasons. The sheriff’s return was personal service. The plaintiff succeeded in the lower court and the defendants appealed. The Supreme Court of Illinois said: “It, then, appearing that appellee was served with process, he must be bound by the officer’s return. It is in rare cases only that the return of the officer can be contradicted,, except in a direct proceeding by suit against the officer for false return. In all other cases, almost without exception, the return is held to be conclusive. An exception to the rule is where some other portion of the record in the same case contradicts the return, but it can not be done by evidence dehors the record.” Accordingly the decree of the lower court was reversed.

Cully v. Shirk, 30 N. E. 882, was a bill in equity to set aside a judgment at law, on the ground that the sheriff’s return was false. The Supreme Court of Indiana said: “This return was regular upon its face, and was such as to fully authorize the court to assume jurisdiction of the person of the defendant. The proceedings of the court subsequent to that time appear to be regular. There is no pretense that there was any fraudulent conduct on the part of the plaintiff or the officer in the service or return of the summons, or that the plaintiff was not a resident of the county. Such being the case, we are of the opinion that the return by the sheriff of the service of the process was binding and conclusive upon the parties to the suit, and that neither of them can as against the other, be permitted to dispute its verity.” The court then added: “We have considered this case upon the ground assumed by the parties that the attack upon the judgment was direct, and not collateral. The converse of this rule seems to be established by the later cases, and the general rule laid down that any attack upon a judgment for want of jurisdiction in the court to render it, predicated upon a matter dehors the record, is collateral.”

In Tullis v. Brawley, 3 Minn. l. c. 284, the Supreme Court of Minnesota said: “It is a well-established general rule, that the return of a sheriff, so far as it is evidence of formal proceedings, is conclusive upon parties, privies, and prima facie upon strangers, and that it is not liable to impeachment, except in direct proceedings in which the officer is a party. Aside from the fact that the officer acts under oath, and that a party injured by any act or omission has an ample remedy against the sheriff and. his sureties, by an action for a false return, such a rule seems necessary to give validity and effect to the acts of ministerial officers, and to protect purchasers at judicial sales, who are not supposed to' have knowledge of, and of course ought not to be prejudiced by the misconduct- or omissions of the officer. All that the law requires of them, is to ascertain whether the officer has a valid writ authorizing him to sell, issued upon a valid and subsisting judgment. Everything else is-a. matter entirely between the party injured and the sheriff and his sureties. Any other rule would deter purchasers and prevent property from selling at its reál value. ’ ’

In Bolles v. Bowen, 45 N. H. 124, the Supreme Court said: “As between the parties, the return of the sheriff is conclusive upon all matters material to be returned; and can not be contradicted by such parties or their privies, or by bail, endorsers, or others, whose rights or liabilities are dependent upon the .suit. The remedy for a false return is by suit against the sheriff, and not by defeating the proceedings in which such return is made. ”

Barrows v. National Rubber Co., 13 R. I. 48, was ■a bill in equity to set aside a sale under an execution on the ground, inter alia, that the return on the execution as to the notice of sale was false, The Supreme Court •of Rhode Island said: “In Angell v. Bowler, 3 R. I. 77, it was decided that an officer’s return on an original writ can not' he controverted by the defendant, except as provided by statute; and in Estes v. Cooke, 12 R. I. 6, it was decided that the return on an execution was conclusive on the parties in a subsequent action. In other States, with two or three.exceptions, the rule is that the return is conclusive on parties and privies until set aside in some direct proceeding. [Swift v. Cobb, 10 Vt. 282; Bates v. Willard, 10 Met. 80; Campbell v. Webster, 15 Gray 28; Sykes v. Keating, 118 Mass. 517, 520; Bamford v. Melvin, 7 Me. 14; Huntress v. Tiney, 39 Me. 237; Messer v. Bailey, 31 N. H. 9; Herman on Executions, sec. 242.] The return is in fact part of the record, and while it stands is as conclusive as any part of it. ’ ’ Accordingly, relief was denied.

Stewart v. Stewart, 27 W. Va. 167, was a bill in equity to set aside a judgment at law, and the question arose on a motion for rehearing by a defendant who had made default that the sheriff’s return was- false. The relief was denied, the Supreme Court saying: “It seems hard, if the petitioner states the truth, that she can have no relief in this suit. But to give relief would be to contradict not only the return of the sheriff on the process issued in the cause, but also to contradict the judicial ascertainment that the defendant had been served with process, and that the bill was taken for confessed as to her.. The statute did not contemplate a case like this. It speaks of rehearing, where the suit has been heard upon an order of publication, or when the summons has been served on the party outside of the State, and the statute positively requires •that £in such case the return must be made under oath and must show the time and place of such service, and that the defendant so served is a non-resident of this State. ’ It would be dangerous to permit the record to be contradicted in such a way. If the return had been made as required by the statute, no more difficulty would be apparent, than if the cause was heard on an order of publication. But as it is, the defendant asks to be permitted to contradict the return of the sheriff upon the 'summons issued in the cause, and this, after the decrees are all entered upon the bill taken for confessed as to such defendant. It has been repeatedly held, that a defendant will not even in the same return or suit be permitted to contradict the return of a sheriff upon the summons issued in the cause. [Slayton v. Chester, 4 Mass. 478; Taylor v. Lewis, 2 J. J. Marsh. 400; Smith v. Hornback, 3 A. K. Marsh. 392; Tribble v. Frame, 3 T. B. Mon. 51; Stinson v. Snow, 10 Me. 263; Bolles v. Bowen, 45 N. H. 124; Angell v. Bowler, 3 R. I. 77; State v. Clerk of Bergen, 1 Dutch. 209; Tullis v. Brawley, 3 Minn. 277; Egery & Hinckley v. Buchanan, 5 Cal. 53; Delinger’s Admr. v. Higgins, 26 Mo. 180; Stewart v. Stringer, 41 Mo. 400; Tillman v. Davis, 28 Ga. 495.] In Bowyer v. Knapp, 15 W. Va. 291, it was decided, that the return of a sheriff upon a notice to take depositions could be contradicted. In Smith v. Hornback, supra, the court said: ‘But as it appears from the sheriff’s return that he delivered the possession to the plaintiff in virtue of the execution, parol evidence to show that possession was otherwise gained is inadmissible. For so high is the virtue of the sheriff’s return regarded, that generally no averment can be admitted against it. [6 Com. Dig., tit. Return, G.] To this general rule there are indeed exceptions, as in an action upon the case, against the sheriff, for a false return, and some others of a like nature, in which the truth of the return is put directly in issue, in a proceeding instituted for the purpose of avoiding the consequences of a false return, or of being indemnified against such consequences, but we are aware of no case in which, like the present, where the question incidentally arises in a proceeding in the same case in which the return is made, it has been allowed to impeach its verity by evidence dehors the record.’ In Slayton V. Chester, 4 Mass. supra. Parsons, C. J., said: ‘It is very clear that where a writ appears by the return endorsed by the officer to have been legally served, the defendant cannot plead in abatement of the writ by alleging matter repugnant.to the return,- if the return be false, his remedy is by an action for a false return against the officer.’ In Tillman v. Davis, 28 Ga. supra, Lumpkin, J., in delivering the opinion of the court, Said: ‘But I will not multiply citations upon this point. I have investigated carefully in Brooke and Miner’s Abridgements, and traced the question to its fountain-head, and find it well settled that, by the common law no.averment will lie against the sheriff’s return, and one reason assigned amongst others is, that he is a sworn officer to whom the law gives credit. [Jenk. 143, pi. 98.]. . . . With a solitary exception (Watson v. Watson, 6 Conn. 334), ‘there is an unbroken array of American cases in favor of the well-established English rule, that as between the parties to, the process or their privies, the return of the sheriff is usually conclusive, and not liable to collateral impeachment, except for fraud or collusion; a rule so necessary to secure the rights of the parties, and to give validity and effect to the acts of ministerial officers, leaving the persons injured to their redress by an action for false return; and that this rule concluding the parties, applies to mesne process, by which the parties are brought into court.’ In Watson v. Watson, 6 Conn. 334, it was held, that the return of an officer whether on mesne or final process is prima facie evidence only, and liable to be disproved. Hosmer, C. J.“, said: ‘It is a general rule of the English common law that a sheriff’s return of an execution, except in relation to himself when sued, is absolutely conclusive. [19 Yin. Abr., 196, 199; Com. Dig., tit. Beturn, G.] The reason assigned for not .admitting an averment against the return of a sheriff is, that he is a sworn officer, to whom the law gives credit. [19 Yin. Abr., 196, 201.] The rule of the common law relative to the return of a sheriff on mesne process is the same; and it necessarily must he as it falls within the same reason. ... To every practicing lawyer it is familiar, that the return of a sheriff on mesne process, is held, by the courts in this State, to be prima facie evidence only. This, so far as my knowledge extends, has been the ancient and invariable doctrine of our courts, and conclusively settles the law of Connecticut on this subject. For this departure from the English common law, I am unable to assign the precise reason. I presume it must have been believed that the prima facie evidence only allowed to a return is a sufficient security to the rights of the people, and necessary to prevent the perpetration of irreparable wrong. ’ The same position has been taken in New York, Indiana, Kansas and Wisconsin. [Ferguson v. Crawford, 70 N. Y. 253; Butler v. State ex rel., 20 Ind. 169; Mastin v. Gray, 19 Kan. 458; Pollard v. Wegener, 13 Wis. 569.] We see no reason for departing from the rule of the common law. If it is thought wise to permit the return of a sheriff on mesne or final process in any case, where the suit is not against him and his sureties for a false return, to be contradicted, the Legislature should furnish the remedy. We think the rule of the common law was founded in wisdom. Others besides the defendant to the suit are interested, that the return of the sheriff should be regarded as absolutely true. Eights of property would suffer under any other rule, and there is sufficient protection against false returns of sheriffs in the right of action directly against him and his sureties. If this rule is rigidly adhered to, sheriffs will be much more careful, and the rights of the citizens much better preserved, than if his returns either in mesne or final process could be contradicted. The only benefit, .that could be given to the petitioner, would come through permitting her to contradict the sheriff’s return, that she was served with process in the suit. He had no authority to serve the process as such officer outside of the State. If he had done so, such correction would entirely have destroyed his return. As we said m Bowyer v. Knapp, 15 W. Va. 291, we do not mean to decide, whether under our statute the return of the sheriff on process may not be contradicted by plea in abatement filed in the suit at the proper time. The court was justified in decreeing that the bill should be taken for confessed upon the return of the sheriff. The petition was'properly dismissed.”

Goddard v. Harbour, 56 Kan. 744, was a bill in equity to enjoin the enforcement of a judgment at law on the ground that the court was without jurisdiction to render it, because the sheriff’s return of personal service upon the defendant was false, the fact being that the defendant never had been served at all. The lower court issued the injunction prayed for, but the Supreme Court reversed the judgment without remanding the case, saying: “But the real question in this case is whether there may be any contradiction of the return outside of the record itself. In England it has been the established law from a very early day that the return is conclusive as between the parties, and that the remedy of a party injured by a false return is by an action against the sheriff on his official bond, in which case alone the truth or falsity of the return may be inquired into. [19 Viner’s Abridgment, 210; 6 Comyn’s Digest, 242.] In this country there is much diversity of judicial opinion on the subject, but the decided weight of authority seems to support the position that, as to matters falling within the personal knowledge of the sheriff, his return is conclusive as between the parties, to the record, unless the falsity of the return is disclosed by some other portion of the record of the case. ’ ’ The court reviews the adjudications pro and con in other States and the prior decisions in Kansas, as to which latter it is said that they only hold that the right to controvert the sheriff’s return is limited to matters not within his personal knowledge, and then concludes its discussion as follows: ‘ ‘ Much can he said by the way of argument for and against the rule which makes the sheriff’s return conclusive. We deem it the safer course to yield, our assent to a rule which has met with the approbation of so large a majority of the courts, and incline to the opinion that the weight of reason rests with that of authority. This case fairly illustrates the dangers and difficulties arising if the opposite rule is followed. Where there is a return of personal service, ordinarily the person served will be the only person who can flatly contradict it, unless the officer himself does so. The service on John J. Harbour was entirely regular, and a summons was left at the residence of Frances J. Harbour, if not in fact handed to her in person, as testified by Brown. To set aside and annul a judgment duly entered on such slight proof of what can hardly be termed more than a technical defect in the service, is certainly establishing a bad precedent, and in our view a much more dangerous one than the rigid rule which we deem best to follow in this case.. Under all the authorities, the proof required to controvert a sheriff’s return- must be clear and convincing. But if we were to permit an inquiry into its truth, we should be met in every case brought into this court by the other rule, that the decision of the trial court on a disputed question of fact is final. We should then rest under the necessity of affirming judgments like- the one now under consideration, or of weighing conflicting testimony. The hardships which may possibly result from the rule adopted are not so great nor so probable as might at first appear, when it is considered that the sheriff acts under oath and is responsible on his official bond. If he makes a mistake the court to which the process is returned may permit him to amend. The proceedings of our district courts are matters of general notoriety. Judgments are not entered here as in New York by the clerk in vacation, bnt must always be taken in open court. In giving conclusiveness to a sheriff’s return as to-those matters coming within his personal knowledge, we do no more than give it the same credit as the parts of the record written by the clerk, any of which may be corrected under the direction of the court when application is duly made but cannot be contradicted by parol testimony. ’ ’

The annotators of Smith’s Leading Cases, Hare and Wallace (1 Smith’s L: C. 842), sum up the law on this subject as follows: “Whatever the rule may be where the record is silent, it would seem clearly and-conclusively established, by a weight of authority too-great for opposition, unless on the ground of local and peculiar law, that no one can contradict that which the record actually avers, and that a recital of notice- or appearance, or a return of service by the sheriff, in the record of a domestic court of general jurisdiction, is absolutely conclusive, and can not be disproved by extrinsic evidence.”

Taylor v. Lewis, 2 J. J. Marsh. (Ky.) 400, was a, suit in equity to enjoin a judgment at law on the-.ground that the sheriff’s return of service was false. The Supreme Court of Kentucky said: £ ‘ This question then arises, can Lewis impeach that return, by a proceeding in chancery? If the bill had alleged a fraudulent combination between Taylor and the sheriff, to-make a false return, so that judgment might be obtained without the knowledge of Lewis, we should have-no doubt, but that a court of chancery might grant relief, upon proving the facts. But when the plaintiff at law, acts in good faith, and the sheriff returns the process, executed, when in truth, it never was, it is our opinion, that the return is conclusive against the de-, fendant, in favor of the plaintiff. If the sheriff acts contrary to his duty, he is responsible to the party injured. It would lead to mischievous consequences, if the official return of an officer, in favor of a party, acting in good faith, could he impeached in chancery, to the prejudice of the innocent party, and he made to suffer for another’s wrong. We are clear, that this ought not to he done collaterally, in a proceeding to which the officer, whose act is to he impeached, is no party. The officer is no party to this suit. The evils resulting from tolerating an impeachment of a sheriff’s return, collaterally, are pointed at in the case of the Sergeant of this court, against George, 5 Litt. 199; and although the question is not there expressly settled, we think the intimation clear, from the reasons given, that the judges then on the bench would have concurred with us. Regarding the sheriff’s return as conclusive upon Lewis, he has failed to make out any grounds for the jurisdiction of a court of chancery. If he has been injured, he has redress at law. ’ ’

Thomas v. Ireland, 88 Ky. 581, was a suit in equity to enjoin the enforcement of a judgment at law on the ground that the sheriff’s return was false and that there was in fact no service. The court said: “It is well settled by this court that where the plaintiff acts in good faith in obtaining a judgment upon the return of the sheriff, endorsed upon the summons, that it was executed on the defendant, though in fact it was not, the return is conclusive as between the plain7 tiff and defendant. The stability of judgments require this rule; otherwise, judgments settling the rights of parties and giving remedies for the enforcement of these rights could never be regarded as permanent, but would be liable to be set aside, and the rights settled thereby be re-opened, when the facts, not only appertaining to the service of the summons, but the merits of the controversy, had been forgotton or rendered unavailing by reason of the death of the parties or witnesses. Of course, if the plaintiff induces the sheriff to make a return that he had served the summons, when he had not, whereby the plaintiff is enabled to obtain judgment against the defendant, the chancellor . would not hesitate to set the judgment aside, upon the ground that it was fraudulently obtained. Also, if he knew the sheriff had made a false return and took judgment against the defendant, notwithstanding, he would be regarded as an aider and abettor of the fraud, and the chancellor would set aside the judgment. But as long as the plaintiff is an innocent party, no false return of the sheriff, though procured by one of the defendants, and that defendant the husband of the wronged defendant [which is exactly the case here if what the sheriff says as to the first return is true], will justify setting aside the judgment as against the plaintiff. His protection lies in the fact that he is an innocent party. When the plaintiff is an innocent party the sheriff and his coadjutor, if he has one, are the wrongdoers, and the wronged party may have an action against them, or either, for damages commensurate to the injury he has sustained growing out of the wrongful act. Also, as the sheriff is the wrongdoer and not a party to the judgment, the proceeding to impeach his return is collateral ; and it is well settled that his return can not be impeached in a collateral proceeding for the purpose of setting aside or of getting rid of a judgment authorized by such a return.”

The petition in that case alleged that the husband of the plaintiff had induced the sheriff to return the summons as personally served on his wife, the plaintiff in that action, so as to conceal from her the fact that there was danger of her land being sold.

Johnson v. Jones, 2 Neb. 126, was a bill in equity to declare a judgment at law void and to enjoin its execution on the ground that the sheriff’s return was false and the defendant therein in fact had no notice. The lower court granted the relief, but the Supreme Court reversed the judgment without, remanding, the case. The Supreme Court said: “It is insisted, that inasmuch as this petition is filed in the same court which rendered the judgment impeached by it, and the parties to the petition and the judgment are the same, the judgment is drawn in question directly, and not collaterally; and the rule is invoked, that, where a record is assailed by a direct proceeding, jurisdiction must appear, and will, not be assumed from the fact of its exercise; while, if it be questioned collaterally, jurisdiction will be presumed, unless the record disproves it. Such undoubtedly is the rule. A party to a finding, judgment, or decree, concerning himself, prejudiced thereby, must resort to some one of the various modes provided by law for appeal, review, rehearing, or impeachment by writ of error. [Citing cases.] The question remains to be determined whether the return of the sheriff may be assailed by extrinsic evidence. Whatever the rule may be when the record is silent, it would seem clearly and conclusively established, by weight of authority too great for opposition, unless on the ground of local and peculiar statutes, that no one can contradict what the record actually avers; and that a recital of notice or appearance, or a return of service by the sheriff in the record of a domestic court of general jurisdiction, is absolutely conclusive.”

Gardner v. Jenkins, 14 Md. 58, was a suit in equity to enjoin a judgment at law because the sheriff’s return was false. The lower court granted the injunction, but the Supreme Court reversed the judgment, holding that as there was' no allegation that the plaintiff was guilty of fraud, the sheriff’s return was conclusive, and a court of chancery had no power to interfere.

Preston v. Kindrick, 94 Va. 760, was a suit in equity to enjoin the enforcement of a judgment at law, on the ground that the sheriff’s return was false. The lower court granted the injunction, but the Supreme Court reversed the judgment. The court calls attention to the discussion of the subject in Freeman on Judgts., sec. 495, where the holdings of several State courts are collated, and says that the better doctrine is that the return is conclusive between the parties and can not be attacked in equity, except in cases where the plaintiff procured or induced the sheriff to make the false return. The court in so holding disagrees with the learned textwriter who takes the side of the courts in those States wherein it is held that the officer’s return is only prima facie evidence and can be assailed and the judgment based upon it set aside by a bill in equity.

The limits of an opinion preclude a further detailed examination of cases. The discussion, however, demands the statement that Black on Judgts. (2 Ed.), vol. 1, sec. 377; Freeman on Judgts. (4 Ed.), vol. 2, sec. 495; 16 Am. & Eng. Enc. Law (2 Ed.), p. 388; and the courts of Pennsylvania, Alabama, Mississippi, Ten-., nessee, Arkansas, Iowa, Wisconsin, California, Connecticut, Oregon, Texas and New York, hold that the weight of authority and the better rule is that the return-of the officer is only prima facie evidence and may be contradicted in a suit in equity to set aside the judgment founded upon it. Some of them permit it to be done without any showing that the party complaining had a meritorious defense, while -others require such a showing.

This investigation, therefore, discloses that while such is the rule laid down by the textwriters quoted and in the States referred to, the doctrine that the return of the officer is conclusive as between the parties to the record, and can not be impeached in equity, except where the plaintiff in the judgment advised or procured the false return to be made, or knowing of the false return, nevertheless took judgment upon it, has always been the law in England, and is the rule adhered to by the Supreme Court of the United States, and by the Supreme Courts of Georgia, Illinois, Indiana Minnesota, New Hampshire, Rhode Island, West Virginia, Kansas, Kentucky, Nebraska, Maryland, and Virginia.

Numerically, tbe State courts outside of Missouri appear to be equally divided upon tbe subject, but tbe Supreme Court of tbe United States and tbe English courts have always adhered tó tbe rule that tbe officer’s return is conclusive upon tbe parties to tbe suit and can not be attacked even in equity, except where tbe plaintiff in tbe judgment has aided or abetted in tbe false return.

It remains only to consider tbe prior adjudications in this State. It has already been pointed out, at tbe beginning of this paragraph, that tbe rule has always been in this State that tbe sheriff’s return is conclusive upon tbe parties and is not subject to attack in tbe original ease, either before or after judgment.

It is admitted that this is so, but it is said that this . court has' never decided that tbe return could not be attacked by a bill in equity. An examination of tbe prior decisions of this court shows that this court has spoken to that question in only two cases, Phillips v. Evans, 64 Mo. l. c. 23, and McClanahan v. West, 100 Mo. 309, and Sherwood, J., spoke for tbe court in both of those cases.

Phillips v. Evans, supra, was an action at law upon a bill of exchange. The «return of tbe sheriff was that the summons was personally served upon one of tbe defendants and constructive upon the. other two defendants. After judgment by default and execution returned practically nulla bona, a second execution was issued. Tbe defendants then appeared and moved to set aside tbe judgment and to quash the execution, because two of tbe plaintiffs were dead when tbe judgment in their favor was entered, and because there was no proper service upon two of tbe defendants, in that as to one of tbe defendants whom it appeared was served “by leaving a copy of tbe summons with a member of tbe family over tbe age of fifteen years, at Ms usual place of abode-in Pettis county,” the return was insufficient because it failed to state that the member of the family was “white” as the statute required, and without this, that the return was false because the defendant never lived in Pettis county and never had a place of abode in that county. On the hearing of the motion the sheriff ashed' and was granted leave to amend his return so as to show that the copy was left with a “white person,” member of defendant’s family, etc. The defendants then offered to prove that said defendant never had a place of abode in Pettis county. The court excluded the testimony and overruled the motion to quash. * The defendants appealed to this court. This court, per Sherwood, J., cited and followed Hallowell v. Page, 24 Mo. 590; Delinger’s Admr. v. Higgins, 26 Mo. 180; Reeves v. Reeves, 33 Mo. 28; and Jeffries v. Wright, 51 Mo. 215, and said: “The return of the officer is conclusive as to the facts therein recited, except in' an action for a false return. . . . The action of the court below, therefore, in the rejection of the evidence in the particular mentioned, will be held correct.” After so disposing of all the questions there were in ‘the case, the learned judge added: “The foregoing remarks are, however, to be restricted to purely legal proceedings. For the arm of a court of equity is not too short to throttle a fraud, consummated, or contemplated, having for its basis either a return originally false or one to be made so by a proposed amendment, and tMs is the view taken elsewhere. [Walker v. Robbins, 14 How. (U. S.) 584; Ridgeway v. Bank of Tenn., 11 Humph. 523; Freeman on Judgts., sec. 495.] ”

It will be observed that the case was one at law and not one in equity; that no aid of a court of eqMty was asked, and that the reference to what a court of eqmty would do was not. necessary to the decision of the case at bar. In addition, the cases cited do not belong to the same class. Walker v. Robbins was decided by tbe Supreme Court of tbe United States and' holds that' tbe return of tbe sheriff is conclusive and can not be attacked even in a court of chancery unless it is alleged and proved tbat tbe plaintiff in tbe action aided or abetted tbe false return. Whereas, Ridgeway v. Bank of Tenn., and Freeman on Judgts., bold to tbe doctrine tbat a judgment founded upon a false return may be set aside in equity, tbe Tennessee courts bolding tbat it is not even necessary to allege tbat defendant bad a meritorious defense.

But whatever may be said of tbat case, it is clear tbat tbe learned author of it did not afterwards regard it as establishing tbe law in this State tbat a court of equity has power to set aside or enjoin a judgment at law founded upon a false return, for be wrote tbe opinion in McClanaban v. West, 100 Mo. 309. Tbat was a suit in equity to set aside a judgmént in partition and tbe deed made pursuant thereto, on tbe ground tbat the plaintiff, one of tbe defendants therein, bad no notice of tbe suit, and was not served with process; tbat tbe sheriff’s return was false and tbat tbe defendant, one of tbe parties to tbe partition suit, bad conspired with another party thereto to conceal from tbe plaintiff, who was then a small girl, all knowledge of tbe partition suit and of tbe sale of tbe land. Tbe petition asked tbat tbe judgment in partition and tbe sale thereunder, be set aside, and tbat she be adjudged an undivided one-seventh part of tbe land. Tbe learned judge said: “Tbe petition in this cause does not charge tbat any fraud was used in obtaining tbe judgment of partition; if this bad been done, if it bad been charged tbat fraud was used in tbe very ‘concoction’ of tbat judgment, it would have been admissible to establish such fraud in tbe present proceeding; regarding it, in tbat event, as a direct attack on that judgment. [Bigelow on Fraud, 86, 87, 88, 90, 94, 95, 636; Bigelow on Estoppel (3 Ed.), 162, 163; Payne v. O’Shea, 84 Mo. 129].

“The authorities differ on the point whether a judgment can he attacked collaterally for fraud, or whether it can alone he done in a direct proceeding. Very strong reasons may be urged in behalf of either view. [Bigelow on Fraud, 86, 87, 88, 90, 94, 95, 636; Bigelow on Estoppel, 161,162, 163, 164.] The eminent author just cited holds that no just distinction can be taken between the right of a party injured, to attack ‘a judgment concocted in fraud,’ whether such an attack be directly made or made collaterally. [Bigelow, Estop. 164]. But it is unnecessary to rule the point now, 'for the obvious reason that there is no tendency in the testimony adduced by plaintiffs to show fraud in the procuring or concoction of the judgment, nor of any connection of the defendants therewith. This being the case, parol testimony was wholly out of place to show that plaintiff Nancy had not been served with process in the partition suit. And this is true notwithstanding that the judgment in that suit is silent as to the acquisition of jurisdiction by service of process upon her.

■ “A domestic judgment, rendered by a court of general jurisdiction, cannot be impeached by the parties to it merely because the record is silent as to the acquisition of jurisdiction. Such judgment is equally as conclusive on the parties thereto, whether it recites, or whether it fails to recite, that jurisdiction has been acquired. Nothing shall be intended to be out of the jurisdiction of the superior ■ court, but that which specially appears to be so. [Freeman on Judgts. (3 Ed.), sec. 132; Crepps v. Durden, 1 Smith’s Leading Cas. (8 Ed.), part 2, 1137, and cas. cited; Freeman v. Thompson, 53 Mo. 183; Lackland v. Stevenson, 54 Mo. 111; State to use v. Williamson, 57 Mo. 192; Huxley v. Harrold, 62 Mo. 516; Grates v. Tusten, 89 Mo. 13; Jeffries v. Wright, 51 Mo. 215; Hallowell v. Page, 24 Mo. 590.]

“But though parol testimony was wholly inadmissible for the purpose aforesaid, yet it was compet<ent to supply the missing files in the partition cause. ’ ’

The court then holds that the files of the case were • admissible to show whether or not there had been service on the defendant therein, and jf the files-were lost, parol evidence was admissible as to their contents or the lost files could have been supplied in the manner ; provided by statute. Accordingly, the judgment of the . lower court dismissing the. bill was affirmed.

I, therefore, answer the challenge that this court 'had never held that a bill in equity will not lie to set ; aside a judgment, based upon a false return, with this < decision of this court. This decision holds that in -order to authorize a court of equity to set aside a . judgment of a court of law, there must be fraud in the very ‘‘concoction’’ of the judgment; that a domestic . judgment of a court of general jurisdiction can not be impeached by the parties to it merely because the rec- • ord is silent as to the acquisition of jurisdiction, but ■ that, ‘ ‘ such a judgment is equally as conclusive on the parties thereto, whether it recites, or whether it fails to recite, that the jurisdiction has been acquired. Nothing shall be intended to be out of the jurisdiction ■ of the superior court, but that which specially appears to be so;” that Hallowell v. Page, 24 Mo. 590, holding 'that the sheriff’s return is absolutely conclusive, is the law in this State; and that parol evidence is wholly in- •■ admissible for the purpose of impeaching in equity a ■ domestic judgment rendered by a court of general jurisdiction, but that such a judgment can only be impeached by the recitals of the record itself or of the ■files in the case.

This ought to settle the question so far as this ' State is concerned, and it shows that Missouri follows ■ the rule of the common law and of the Supreme Court ■ of the United States and of the States referred to which hold that the sheriff’s return is conclusive upon the ¡parties to the suit, both in the same case and in equity, except -where the plaintiff has aided, abetted or knowingly taken advantage of the false return, and that., the injured party is reverted to a suit on the sheriff’s bond in an action for a false return.

Upon principle and' for practical purposes this -is. the better and wiser rule, and has become too deeply-imbedded in the jurisprudence of this State, and the-rights of too many purchasers at sheriff’s sales have become fixed upon the faith of the rule, to permit it now-to be changed. For it must-be apparent that if judgments, and rights acquired under them by third persons, can afterwards be upset by a suit in equity, no one would risk money by buying at an execution sale, or, at best, would discount the risk by giving only a small proportion of the true value of the property.. This would result in injury to the debtor and creditor both, for the debtor’s lands would not sell for their true value, and the creditor would not realize on his. claim in full. But in addition to this consideration, such a rule would offer a premium to a defendant to make-default, let judgment go against him, let his land be sold, and a third party buy it, and thus have his debt-paid, ‘and then sue in equity to set aside the deed and recover his land by disproving the sheriff’s return. Thus his debt would be paid, his creditor would be satisfied, the debtor would recover his land, and the only sufferer would be the purchaser at the judicial sale. Under such a rule, judicial sales would not amount, to much when the people once understood the risks incurred. This is exactly the status of the case at bar. For these reasons I think this case-was improperly decided on former appeal and that the former decision should be overruled.

in.

After this case got back into the circuit court, the former sheriff applied for leave in the original case of. Judd v. Smoot to amend his return so as to. conform to the facts by showing that the writ was served on Mrs. Smoot, by leaving a copy with her husband, etc. Mrs. Smoot was notified, appeared, contested the motion, the sheriff was. permitted to amend his return as requested, and Mrs. Smoot appealed the case to the Kansas City Court of Appeals, where the judgment was affirmed.

The trial court had power to permit the ex-sheriff to amend his return, and the fact that he was no longer sheriff is immaterial, as he alone could amend it. [Magrew v. Foster, 54 Mo. 259; Feurt v. Caster, 174 Mo. l. c. 297, and cases cited.]

When the return was so amended it related back to the time of the service. [Webster v. Blount, 39 Mo. 500; Kitchen v. Reinsky, 42 Mo. l. c. 436.] Thereafter the only return in the-original case was service by copy and not personal. But whether regard be had to either the original or amended return, the result is the same, for the return, whatever it was, is conclusive upon the parties to that suit, and cannot be contradicted in this action, or any other action except a direct suit against the sheriff for false return. This disposes of this case in my judgment, and it is wholly immaterial whether this case was then pending or not, for the result is not to deprive a court of equity of jurisdiction after it had once attached, but to apply the rule of law as to the conclusiveness of a sheriff’s return to a case pending in a court of equity, with the result that no relief can be granted under the facts in judgment.

IV.

It is said, however, that the note was made in 1887, and at that time the plaintiff was incompetent to contract, by reason of being covert, and hence the judgment is a nullity.

It is true that the plaintiff was not bound by her note, and that the Married Woman’s Act of 1889 (R. S. 1889, sec. 6864, now sec. 4335, R. S. 1889), making her a feme sole with power to contract, sue and be sued, was not retroactive and did not make her liable-for. that note. [Van Rheeden v. Bush, 44 Mo. App. 283; Klotz v. Bates, 83 Mo. App. 332; Bragg v. Israel,. 86 Mo. App. 338.] But this did not make the judgment, a nullity, as was.the case prior to the passage of that, act. [Bauer v. Bauer, 40 Mo. 61; Bank v. Collins, 75 Mo. 280; Gage v. Gates, 62 Mo. l. c. 417; Weil v. Simmons, 66 Mo. l. c. 618.] The effect of that act was to-leave, coverture a defense to be pleaded and taken advantage of by a married woman, just as any other litigant must plead fraud, or any other affirmative defense, and the fact of coverture and the failure to-plead it, does not render a judgment against a married woman entered since the passage of the act invalid or void, and such a judgment can-no more be attacked collaterally now, than can any judgment where the attack is based solely upon an omitted defense. The judgment can only be attacked directly for fraud in. the very act of procuring it. [Bates v. Hamilton, 144 Mo. 1; Fears v. Riley, 148 Mo. l. c. 58; Neun v. Blackstone B. & L. Assn., 149 Mo. l. c. 80; Swinford v. TeeGarden, 159 Mo. l. c. 642; Crim v. Crim, 162 Mo. l 1. c. 554; State ex rel. v. Shaw, 163 Mo. l. c. 196.]

Reference is made to the fact that Judd knew that. Mrs. Smoot was a married woman, and yet he did not. describe her in the petition as a married woman, and. while it is said that this did not constitute a fraud on. Judd’s part, “that omission is a fact which conspired, with other facts to deprive her of her defense without, any neglect on her part.” [Smoot v. Judd, 161 Mo. l. c. 688.] In my opinion Judd was not obliged to state-in his petition that Mrs. Smoot was a married woman, and if it was not a fraud in the very concoction of the-judgment, then the omission so to state cannot, either by itself or in connection with anything else, afford' any ground whatever for setting aside'the judgment.

Quoad that case, Mrs. Smoot had been brought into-court in one of the modes prescribed by law. He knew she was a married woman. She alone could take advantage of that fact. She could only raise the question by a plea. She made default. Judd did not prevent her ■from making that or any other defense she had. She-chose to let judgment go, when she had a good defense. Sheds now in no'better condition to ask the aid of a court of equity, than any other person would be who had a good defense and did not interpose it at the 'proper time.

Y.

.But aside from all these considerations, there is no equity in the bill, and she is not entitled to a decree-upon the facts, even if she was entitled to maintain a suit in equity under such circumstances, and even if she had a right to contradict the sheriff’s return in this, proceeding.

If all she says as -to the want of service of the-original summons be true, the fact still remains substantially uncontradieted that after the judgment had bqen rendered against her she knew of the judgment, and took no steps to avoid it or to get it set aside. On-the contrary she waited until her interest in the land' was levied on and until a day or two before it was-to be sold under execution on the judgment, and then she employed counsel and went to see Judd’s attorney-in person, to obtain six months time in which to redeem the land after it should be sold, and she entered' into a written contract with Judd, whereby twelvemonths time to redeem was given her. She took advantage of that extension and agreement, but did nothing. The land was sold on March 10, 1902. Judd' waited for her to redeem until October 30, 1903, which, was nineteen months, and as she did nothing, he filed, the suit for a partition. She filed an answer in that case in which she denied that she had ever conveyed' her interest in the land to Judd, but she said nothing; about the original Judd judgment being void because the summons was not served upon her or because she was a married woman when the debt was contracted and when the judgment was rendered. The court •struck out her answer, and she submitted to the ruling of the court, and took no further steps at that time to protect her interests or to warn others of the claim she now asserts. On the contrary she stood by and saw the land sold to innocent third persons under the partition decree on September 3, 1894, and even after that she waited until August 18, 1895, before ' she brought this suit. Now she predicates a right to equitable aid, on the ground that the sheriff’s return, made on July 28, 1891,- of which she concededly had notice as early as March, 1892 (she says in this petition she knew it as early as March, 1893), when the property was about to be sold and she made the agreement to redeem, was false.

In short she asks to recover the land from innocent purchasers at a judicial sale, after her debt has been paid by the sale of the land, and after she has recovered a judgment against the sheriff for false return — nominal, it is true, but she submitted to it and aside from this it must be presumed to represent compensation for all she had lost, and after she had been guilty of all the laches herein pointed out. There is' no equity in the bill.

VI.

There is yet another reason I think why this judgment should be affirmed. The only witness who testified that the sheriff’s return-was false was Mr. Smoot. His testimony is a simple negative. It is without any supporting or corroborating fact or circumstance.

On the other hand the sheriff testified to the truth of the amended return, and explained the reason for making the first return to be.that Mr. Smoot told him •his wife was sick and he could not see her, but to leave the writ with him and return it as personally served. The sheriff is corroborated collaterally by the testimony of Mrs. Smoot’s attorney, Capt. Cole, and by the testimony of Judd’s attorney that before the sale she knew of the judgment and only wanted time in which to pay it, and by the written agreement as to time, and by the character of the answer of Mrs. Smoot in the partition case. The preponderance of the testimony, therefore, is in favor of the truth of the amended return. But aside from this, two chancellors have tried the case, have seen the witnesses, and heard their testimony, and both of them refused to believe the testimony of Mr. Smoot. This court ought not to substitute its finding of fact for that of the chancellor under such circumstances. Even in States where a bill in equity is held to lie to set aside judgments at law based upon alleged false returns, the courts have refused to do so where there is only the oath of one person against the oath and return of the officer. Such was the case in Gatlin v. Dibrell, 74 Tex. 36, where the court said that such evidence was wholly insufficient to prove the falsity of the return, saying: “In the •ease of Randall v. Collins, 58 Tex. l. c. 232, it is said: '‘But assuredly, if equity will allow one who has been •guilty of no fraud or negligence to contradict the sheriff’s return by parol evidence for the purpose of having an unjust judgment by default set aside, we are of the opinion that it should require the evidence to be •clear and satisfactory. It is not like an ordinary issue of fact, to be determined by a mere preponderance of testimony.’ ” In the same case the court quotes with approval from the case of Driver v. Cobb, 1 Tenn. Ch. 490, the following language: “Nor will one witness alone suffice to successfully impeach the return, for that would only be oath against oath. In analogy to the 'denials or averments of a sworn answer upon the defendant’s knowledge, there should be two witnesses, or one witness with strong corroborating circumstances. And, without reference to this rule, upon general principles it would seem essential to the peace and quiet of society that these solemn official acts should not be set aside with the same ease as an ordinary act m pais.”

While the finding of facts by the lower court in an equity case is not conclusive upon this court, nevertheless, it has ever been the practice to defer largely to it. If there ever was a case where it should be deferred to, it is this case.

VII.

Lastly, it is said that while the sheriff’s return can not be impeached in the original case or by a bill in equity, if a third person became the purchaser of the property under an execution issued upon a judgment that was based upon a false return by the sheriff, and while the law in this State is that a false return cannot be impeached at law, even in the original case, nevertheless it can be impeached and the judgment, and its subsequent effects and consequences, can be adjudged to be void in a direct attack in equity, if the party to the suit becomes such a purchaser.

To my mind no such distinction can be logically or scientifically maintained.

The admitted principle as to third persons is that they are innocent purchasers; that they have a right to rely upon the integrity and conclusiveness of the judgment, and that to hold otherwise would be to destroy the protection the law gives to purchasers at judicial sales.

The foregoing discussion must be lame and impotent if it does not clearly show that the rule that has always obtained in England, and in the Supreme Court of the United States, and in the twelve States herein-before referred to, and in Missouri, is that the sheriff’s return is conclusive in favor of, as well as against, all parties and privies to the action, and any loss caused by its falsity can only be redressed in an action against the sheriff oil his bond, unless the plaintiff in the case was a party to the false return or knew of it and so knowing took advantage of it, and hence was guilty of a fraud in the very concoction of the judgment.

The corollary of this rule is that if the plaintiff was not guilty of such a fraud,'but if the sheriff alone was guilty of the fraud,- then the plaintiff is an innocent party, and being so, the judgment forecloses all inquiries and precludes all attacks upon it.

Now- this is solely and purely because the plaintiff is an innocent party and because being innocent he is entitled to rely upon the integrity and conclusiveness of the judgment, and if he becomes the purchaser at the execution sale, he is entitled to the protection which the law gives to purchasers at judicial sales.'

There is, therefore, no. difference between an innocent plaintiff who purchases at the execution sale and an innocent third person who purchases at such a sale. The test in both cases is the innocence of the purchaser and not the relation of the purchaser to the suit.

That this is true is easy to show. For. instance: it cannot be denied that if a third person procures or aids or abets the sheriff to make a false return with the purpose to buy the property at the execution sale, he is not an innocent purchaser, and hence is not protected, and the sale may be decreed void in equity for fraud. And this is true even if the plaintiff in the action was innocent. For in such case the innocent plaintiff would have received satisfaction of his'judgment, and would not be injured by declaring the sale to the fraudulent third person to be void. , This is just as true as the converse of the proposition that the innocent purchaser is protected even though the plaintiff may have been guilty of a fraud in the procurement of the judgment. In both cases the law punishes the fraud, but protects the innocent party.

It follows, therefore, as clearly and inexorably as human wisdom can demonstrate, that the whole question turns upon the innocence of the purchaser at the judicial sale, and not upon the consideration whether such person is a party to the case or a third person.

The plaintiff at the execution sale in this instance was the plaintiff in the case, but it is not even asserted or intimated that he was guilty of any fraud in the procurement of the judgment nor that he procured,, aided or abetted the sheriff in any manner in the making of the return, nor that he knew it was false and took advantage of it. In the view of the law he is, therefore, just as innocent and entitled to as much protection as any innocent third person who purchased at the execution sale could be.

This is the logic of McOlanahan v. West, 1Q0 Mo. 309. One of the plaintiffs was the purchaser at the judicial sale, and the action was against him- to set aside the judgment and sale by a suit in equity. But as there was no fraud shown on his part in the -concoction of the judgment he was protected, notwithstanding it was alleged that he was guilty of fraud and concealment after the judgment was rendered and after he became the purchaser.

VIII.

Since writing the foregoing, the facts in judgment, as well as the law applicable to such cases, have again been reviewed and the cases herein referred to have been criticised, and it is now said that neither those cases, nor any others to be found, afford any support for the position herein taken, but that the great weight of adjudication, as well as the authority of the text-writers, establishes the rule to be, that a judgment by default at law can be impeached in equity upon the ground that the sheriff’s return is false and upon a showing that the defendant in the judgment had a meri-' torious defense; and further that the facts in judgment here show that the plaintiff herein has been grievously wronged, and that the defendants Brand and Jackson, who purchased the property at the partition- sale, are not innocent purchasers, but that they had notice that the return was false.

I disagree utterly with both the «conclusion of law and fact so announced and because of the great importance of the legal principles involved, and so that there may be no room for misunderstanding concerning what is involved, both as to the law and the facts, and as to what is intended to be decided in this case, no apologies are necessary for herd critically and thoroughly analyzing the opinion of the learned judge as well as again examining the law and the facts of the case, calmly; courteously and fairly, but without impairing the force or logic of the discussion. I am convinced that I can demonstrate to a certainty that the cases I have herein referred to, amply and thoroughly support the position I have taken, and that the criticisms levelled against them are not tenable, and that' the facts in judgment show that Judd, his attorneys, and the said purchasers, Brand and Jackson, are absolutely innocent of the slightest fraud or suspicion of fraud in the whole matter, and are innocent parties in' the transaction, and that if the plaintiff herein has suffered any loss she has herself and her husband to blame for it.

The opinion under review starts out by conceding that the law has always been in this State that the sheriff’s return is conclusive at law even in the original case, before judgment, between the'- parties to the action and their privies, as well as upon the sheriff; and further that it is likewise conclusive after judgment, even in equity, as between the parties to such action, and, third, innocent purchasers at an execution sale under the judgment.

The contention of the learned judge, however, is, that notwithstanding this rule, the judgment may he impeached in equity by the defendant in the judgment showing that the sheriff’s return is false and that the defendant had no notice of the suit, and that he had a meritorious defense. This is not the law, but on the contrary the better law and the rule in this State is, that the return of^a sheriff is conclusive in the original suit before judgment upon the parties to the suit as well as upon the sheriff, and also is conclusive after judgment even in a proceeding in equity, upon the parties to the action, in all cases except where it is charged and shown that the plaintiff in the judgment procured the sheriff to make a false return, or aided or abetted him in so doing, or knowing, before judgment, that the return was false, took advantage of it and asked for judgment thereon; or in other words, except where the plaintiff in the judgment was guilty of a fraud in the very concoction of the judgment.

An analysis of the criticism levelled at the cases hereinbefore referred to demonstrates that the criticism is untenable'. The first case criticised is Walker v. Bobbins, 14 How. (U. S.) 584. As hereinbefore pointed out, that was an injunction to restrain the enforcement of a judgment, based upon a marshal’s re- . turn of personal service, which the deputy marshal, who made the service, testified was false. The criticism of the decision of the Supreme Court of the United States is, that the court said, “We are of opinion, however, that the return was not false; but if it was, that Walker waived the want of notice by pleading to the action,” and then the opinion under review herein asks, “What room was there under the facts of that case for the discussion of the question of equity jurisdiction with which we are now concerned?”

In other words the criticism is, that as the return was held to be true, notwithstanding the testimony of the deputy marshal who served the process, that it was false, and as the defendant waived the want of notice by pleading to the action, therefore the Supreme Court of the United States unnecessarily and improperly indulged in some obiter dicta when it held that a bill in equity would not lie to impeach the return, and hence what that court said is ho support whatever to the position herein taken.

The fact is that the court held in that case that the plaintiff was not entitled to the relief sought, because, first, a bill in equity will not lie to enjoin a judgment at law, based upon a false return, and, second, that in fact the return was not false, even though the deputy marshal who served the process swore it was. As hereinbefore pointed out, the court first examined the law applicable to such cases, upon the assumption that the return was false, and held that a bill in equity would not lie, and then found the facts to be that the return was not false and that the defendant had waived the want of notice by pleading to the action.

What the. court said was this: 11 Assuming the fact to be that Walker was not served with process, and that the marshal’s return is-false, can the bill, in this event, be maintained? The'respondents did no act that can connect them with the false return; it was the sole act of the marshal, through his deputy, for which he was responsible to the complainant, Walker, for any damages that were sustained by him in consequence of the false return. This is free from controversy; still the marshal’s responsibility does not settle the question made by the bill, which is, in general terms, whether a court of equity has jurisdiction to regulate proceedings, and to afford relief at law, where there has been abuse, in the various' details arising on execution of process, original, mesne, and final. If a court of chancery can be called on to correct one abuse, so it may be to correct another; and in effect, to vacate judgments, where the tribunal' rendering the same would refuse relief, either on motion, or on a proceeding by audita querela, where this mode of redress is in use. In cases of false returns affecting the defendant, where the plaintiff at law is not in fault, redress can only he had in the court of law where the record was made, and if relief can not he.had there, the party injured must seek his remedy against the marshal.

“We are of the opinion, however, that the return was not false; hut if it was, that Walker waived the want of notice by pleading to the action.”

Thus .the court held that upon the case made by the plaintiff he could not recover as a matter of law, but that the defendant’s testimony had overcome the case made by the plaintiff, and for this reason also, the plaintiff was not entitled to recover.

The gist of the criticism is that because the court found the facts to be as the defendant contended, therefore, what the court said was the law if the facts had been as the plaintiff showed, was obiter and improper, and hence is no decision as to what the law is, and affords no support to the position herein taken.

This plain statement disposes of the criticism.

The decision of the Supreme Court of the United States in Knox Co. v. Harshman, 133 U. S. 152, is also criticized.

That was a bill in equity to restrain the enforcément • of a judgment at law, on the ground that the bonds, for the recovery of which the judgment was rendered, were void, and because the return of the sheriff was false. The court said: “The officer’s return stated that he served a copy of the summons upon the clerk. If that return were false, yet no fraud being charged or proved- against the petitioner, redress could be sought at law only, and not by this bill. [Walker v. Robbins, 14 How. 584.] ”

The criticism is that the law as thus declared was ■obiter and of no weight because the court so holding found the fact to be, as the defendant claimed, that the return was not false. What is- hereinbefore said with respect to the criticism of the case of Walker v. Robbins, snpra, applies equally to the criticism of Knox Co. v. Harshman.

Thus it appears that from 1852, when Walker v. Robbins was decided, until 1890, when Knox Co. v. Harshman was decided, the Supreme Court of the United States has always held, and, so far as appears, still holds, that the law is that a bill in equity will not-lie to restrain the enforcement of a judgment at law, based upon a false return, unless the plaintiff in that judgment was shown to have knowledge of the falsity of the return and to have participated in it in some •way, but that the party injured by the false return is. reverted to an action against the sheriff.

This being true, it- is wholly erroneous to say that, no case has been found in the books that supports the-doctrine herein stated. If there were no other cases, found, these cases themselves would fully refute' the-statement, and Avould afford at least respectable authority for that position.

But in further refutation of the statement, let it be noted that it is hereinbefore pointed out that the rule: herein announced has been- the uniform rule in England, ever since the English courts have ever spoken on the subject, and that while the decisions of the Supreme Court of the United States and of the States hereinafter referred to are criticised, no reference whatever is made to the English eases and no criticism is levelled against them.

So in addition to the support given by the Supreme Court of.the United States to the position.here taken, the English decisions are also tacitly conceded to be to -the same effect.

The cases of Stites v. Knapp, Ga. Dec. part 2, p., 36, and Baker v. Morgan, 2 Dow’s Reports 526, are hereinbefore referred to and analyzed. The first was a decision by the Supreme Court of Georgia, and 'the latter was a decision by the House of Lords in England. They wére both suits in equity to set aside judgments at law based upon alleged false returns of the sheriff. Relief was denied in both cases. The Georgia Supreme Court held that if the return was false, the sheriff was liable on his bond, but that the truth or falsity of the return could not be inquired into in equity. In the English ease Lord Redesdale said “that equity might -try whether a judgment was obtained by fraud, but he never heard of trying proceedings at law for irregularity,” and Lord Eldon expressed the same view.

These cases are not referred to in the criticism under review. Yet they are directly in point and must be added to the list of cases that support the doctrine" ■here announced.

Hunter v. Stoneburner, 92 111. 75, is next criticised and declared to afford no support for the doctrine here announced.

That was a bill in equity to set aside a judgment in partition on the ground that it was procured by fraud, and because the return of the sheriff was false. The plaintiff in the partition suit purchased the property at the sale in partition and afterwards sold it to a third person, the defendant Stoneburner. The Supreme Court of Illinois found that there was- not the slightest •evidence of fraud in the case, and then said: “It, then, appearing that appellee was served with process, he must be bound by the officer’s return. It is in rare ■cases only, that the return of the officer can be contradicted, except in a direct proceeding against the officer for false return. In all other cases, almost without ■exception, the return is held to be conclusive.. An exception to the rule is, where some other portion of the record in the same ease contradicts the return, but it ■can not be done by evidence dehors the record. ’ ’ Ac•cordingly, relief in equity was denied.

The criticism of this case is that no fraud being found the bill disclosed no equity (because presumably 'there was no charge of meritorious defense in addition to the charge of false return) and that the conclusion reached was right, because the guardian ad litem had filed an answer for the minor defendant who claimed not to have been served, and because the rights of innocent third persons had intervened..

The first criticism is, that because the case made was such as would not warrant a court of equity to afford any relief under the rule contended for by the learned judge whose opinion is under review, because no meritorious defense was shown in addition to the falsity of the return, therefore, the Supreme Court of Illinois reached the right conclusion, and hence, although that court did not act upon any such rule, the principles of law upon which it acted are of no consequence and afford no authority for the position herein taken. It is enough to say that the court stated in very plain language that it refused equitable relief because the sheriff’s return was conclusive and could not be contradicted by evidence dehors the record, and that the only remedy the aggrieved party had was by a suit on the sheriff’s bond.

The second criticism of that case is that the relief was properly denied because the guardian ad litem filed an answer for the minor defendant who had not been •served.

Of this it is only necessary to say that in this State a guardian ad litem can only be' appointed for a minor defendant who has been personally served, and that no guardian ad litem can enter the appearance of a minor defendant or waive notice of suit for him and a judgment against a minor upon such appearance is void. [Hendricks v. McLean, 18 Mo. 32; Smith v. Davis, 27 Mo. 298; Shaw v. Gregoire, 41 Mo. 407; Campbell v. Gas Light Co., 84 Mo. 352; Fischer v. Siekmann, 125 Mo. 165.] In the last case cited, Brace, J., speaking for this •court, held that where a minor defendant is not served with process, the court acquires no jurisdiction,- and can not appoint a guardian ad litem for him, and such a guardian can not enter Ms appearance, and the judgment against him is void. !

The third criticism of that case.is that the rights of tMrd innocent persons had intervened, and hence theconcMsion was right although the principles of law announced by the court as the.reason that induced it to-reach that conclusion were wrong.

It must be noted that while the Supreme Court of • Illinois held that the defendant was an innocent purchaser from the plaintiff in the partition suit who-bought at the partition sale, and so was protected against -the claim of the defendant in that case that the-sheriff’s return was false, this in nowise militates, against the rule laid down by that court as to the jurisdiction of a court of equity. It will also be noted that the court held in that case that a purchaser at a partition sale' need not look behind the decree in partition to ascertain whether the sheriff’s return was false or-not, or whether any other step in the case had been-properly taken of not, for the decree was res adjudicaba. as to those questions upon all parties to the action.

The criticism of this case, therefore, fails, and this-, case must also be included in the list of cases that support the doctrine here announced.

But in this ^connection it is proper to say that if the defendant in that case who had purchased from- the-plaintiff in the partition suit, who had bought at the-partition sale, was an innocent purchaser, as the criticism says he was and as the Illinois court held he'was,, it is not conceivable how the opinion under review here-can say that Brand and Jackson, who purchased at the-partition sale here involved, and not from a party to-the suit who had purchased at the partition sale, are-not innocent parties. Bnt as to tMs feature of this, case, more a non.

In this connection, however, it is proper to further say, that in view of the decision of the Supreme Court of Illinois in Hunter v. Stoneburner, supra, it is not. •conceivable how the learned judge could cite the earlier cases in Illinois, of Owens v. Banstead, 22 Ill. 161; Hickey v. Stone, 60 Ill. 458; and Weaver v. Poyer, 79 Ill. 417, and upon their authority put Illinois in the list of States that hold to the doctrine contended for by him. In view of this last emphatic utterance of the Supreme Court of Illinois, that State must be taken out •of the list of States which the learned judge says hold to the rule contended for by him, and must be allowed 'to remain where it is classed hereinbefore, as among 'the States that follow the rule herein announced.

Cully v. Shirk, 131 Ind. 76, is sought to be'distinguished from the case at bar upon the theory that relief in equity was denied in that case because the plaintiff therein, did not allege or prove that he had a meritorious defense to the action at law, but relied solely upon the falsity of the sheriff’s return.

The Supreme Court of Indiana calls attention to the fact that there was no allegation or proof of meritorious •defense. But the case did not turn upon that proposition. On the contrary, the court reviewed the prior adjudications in that State and clearly pointed out that the case did not come within the provisions of the statute which granted relief where a defendant who had a meritorious defense was prevented from making that -defense by “his mistake, inadvertence, surprise or excusable neglect,” as was the prior case of Nietert v. Trentman, 104 Ind. 390, nor was it within the rule laid •down in Dobbins v. McNamara, 113 Ind. 54, where in addition to a charge of the falsity of the return it was averred that the return was procured by the fraud of the plaintiff’s attorney. The court then said: “The •distinction between the cases is marked and important. The elements of fraud and the non-residence of the defendant, lacking in this case, were in that case controlling.” And then added that it had considered the case upon the ground assumed by the parties that the attack was direct and not collateral, but that this was not the fact, and held that the attach was collateral, and said that ‘ ‘ any attack upon a judgment for want of jurisdiction in the court to render it, predicated upon matterdehors the record, is collateral.”

The criticism of this case is therefore untenable..

The criticism of Tullis v. Brawley, 3 Minn. 277, is that it was an action'at law-by a purchaser at a. sheriff’s sale to recover the purchase price paid for the-property bought at the judicial sale, on the ground that he got no title, and therefore what the court said as to-the conclusiveness of the sheriff’s return has no application to a case of equity jurisdiction.

This is not a correct statement of the case. The-action was predicated upon the theory that the sheriff’s return that he had levied on the property sold was false and that the plaintiff had lost his money by relying upon that return. The plaintiff was a third innocent-party. He insisted that the return was false and that it was open to attack. The defendant, who was the sheriff, contended that the return was conclusive in this-form of action. The court so held, using the languagehereinbefore set out.

The rationale of that decision is, that the return of' a sheriff is conclusive upon all parties, even upon innocent third persons who purchase at judicial sales, in all kinds and forms of proceedings, except in a direct suit for damages against the officer on his bond. This decision is illustrative of how strictly the courts of that State enforce the rule under discussion, and is more-comprehensive and far-reaching than the opinion under-review here seems to appreciate.

But if what is said in that case is obiter because-it was said in an action at law, by what process' of" logic can the learned judge be -permitted to rely so-strongly upon what was said by this court in Phillips v., Evans, 64 Mo. l. c. 23 ¡f That was a proceeding at law, by motion of the sheriff to be allowed to amend his return. This court held that the truth or falsity of the: original or of the amended return could not he inquired into in a court of law, hut added that the arm of a court of equity is not too short to throttle a fraud, consummated, or attempted, having for its basis either a return origihally false or one to he made so hy a proposed amendment. If what was said hy the Supreme Court of Minnesotá, in Tullis v. Brawley, supra, is to he discarded as obiter, because uttered in a proceeding at law, then what was said hy this court in Phillips v. Evans, supra, must also he obiter for the same reason, and if this is done it would leave the opinion under review absolutely without a shadow of support hy the decisions in this State. For, as hereinbefore pointed out, the learned judge who made the remark quoted in Phillips v. Evans, held exactly the contrary in a direct proceeding in equity when the question was squarely presented, and said that parol evidence was inadmissible to contradict a sheriff’s return, even in equity. [McClanahan v. West, 100 Mo. 309.]

What is here said applies equally to the criticism of Bolles v. Bowen, 45 N. H. 124, which holds that the return is conclusive as to the parties to the action, and that “the remedy for a false return is hy suit against the sheriff, and not hy defeating the proceedings ip which such return was made.” In this connection it is proper to note that the court, in deciding Bolles v. Bowen, supra, referred to Hall v. Tenney, 11 N. H. 516, as a very similar case, and that in the latter case it was held that the sheriff’s return is conclusive between the parties to the suit and can only he attacked for fraud, and that if anyone suffers hy the default of the officer, ‘ ‘ he has his remedy hy an action against him for a false return,” citing Woods v. Varnum, 21 Pick. 165.

The opinion under review says that Barrows v. Rubber Co., 13 R. I. 48, hereinbefore referred to, has been overruled hy the later case of Dowell v. Goodwin, 22 R. I. 287. This is not strictly accurate. In Dowell v.Goodwin, the court referred to Barrows v. Rubber Co., •and instead of overruling it, undertook to distinguish the ease at bar from that case by saying that the rule laid down in that case applied only to common-law actions. The court failed to observe that Barrows v. Rubber Co. was not a common-law actioh, but was a bill in equity to set aside a sale under an execution. Barrows v. Rubber Co. is directly in line with all the prior adjudications in that State, and if a new rule was intended to be established, the prior cases ought to have been overruled, and not distinguished. But aside from this, Dowell v. Goodwin can not be accepted as authority in any other jurisdiction. Relief in equity was asked upon the grounds that the return of the sheriff was false and that the defendant in the action at law had a meritorious defense. There was no allegation of fraud. And Judge Story, and the Supreme Court of the United States and the Supreme Courts of Indiana and New York, are quoted indiscriminately with the Supreme Court of Connecticut and with Freeman on Judgments, as authority, when the fact is that the Supreme Court of the United States and the Supreme Courts of Indiana and New York, in the .cases cited, adhere to the doctrine that relief can only be granted where the judgment sought to be relieved against was procured by fraud, while the Supreme Court of Connecticut has always • adhered to the rule that equity' mil relieve against a judgment at law solely upon the ground that the sheriff’s return was false;.and this too without any allegation of fraud or even meritorious defense.

But, aside from this, Dowell v. Goodwin proceeds upon the theory that a false return is necessarily a fraudulent return. This is not the law. A return may be untrue (as in the case at bar' as to the original return) and yet there may be no fraud. Moreover, if it be conceded that a false return is a fraudulent return, the fraud is that of the officer, and as the plaintiff in the action was not a party to that fraud nor charged with knowledge of it, there was no fraud in the very concoction of the judgment, which is. essential to be shown in this State.

If, therefore, Dowell v. Ooodwin has overruled the prior decisions in that State it can not be taken as authority in this State.

It will be observed, however, that the opinion under review here in speaking of that case enunciates a different rule from that laid down in that case, when it says, “When a sheriff makes a false return, he either does so willfully, in which event he commits a fraud, or he does so by accident or mistake, and in either case it falls within the province of equity jurisdiction.”

- It is a general rule that equity will relieve against fraud or mistake. But the fraud must have been the fraud of the other party to the transaction or to the action, and not simply the fraud of some third person or of the sheriff which was unknown to the other party to the action. And the mistake must have been a mutual mistake of both of the parties to the action or transaction. The mistake of one of the parties alone is not enough.

Stewart v. Stewart, 27 W. Va. 167, is next criticised, and it is said that it was not a bill in equity, but a proceeding under the statute, and’that the court ‘ ‘ did not discuss the question of equity jurisdiction, but only the effect of the sheriff’s return as between the parties in the same case.”

This- is a misapprehension. It was a bill in equity instituted by the divorced wife against her former husband and his alleged paramour, to set aside a judgment the former husband had confessed in favor of his paramour, on the ground that it was fraudulently contrived to defeat the divorced wife in her attempt to realize on a judgment for alimony rendered in her favor, and upon the further ground that the alleged párámour had caused the judgment in her favor to be levied upon certain land of the former husband. The prayer of the bill was that the judgment in favor of the alleged paramour be set aside as fraudulent, and for a decree subjecting the land to the payment of the former wife’s judgment.

The petition alleged that the plaintiff lived in Ohio, and'had obtained a judgment against her said divorced husband in that State, and that she had attached the land in West Virginia so conveyed by her divorced husband to his paramour. It further alleged that her divorced husband and his paramour lived in his dwelling house in Beaver county, Pennsylvania, and that both the said divorced husband and his paramour were non-residents of the State of West Virginia. The divorced husband appeared and demurred to the bill. The paramour made default. The cause was heard on March 27,1883, as the,opinion recites, “on the bill and exhibits filed therewith, the former orders made and entered therein, the process of summons duly executed as to both defendants” (the italics are added) “the order of attachment issued in said cause and duly-docketed, the levy indorsed on said attachment by the sheriff of Hancock county, and the depositions filed in said cause taken on due notice to said defendants, and was argued by counsel.* And the said defendants not having, either jointly or severally, answered said bill, although a" rule to answer was awarded against them, the said bill is taken for confessed as to them and each of them.” A decree was entered ascertaining the indebtedness of the divorced husband to the plaintiff and requiring him to pay the same. The judgment confessed by the divorced husband in favor of his paramour was set aside so far as it appeared to be a prior lien to that of the plaintiff on the land, and the attached property was ordered to be sold, unless the divorced husband paid the plaintiff’s debt within thirty days, and a commissioner was appointed to sell the land and make report, which he did, and made report on June 25,1883.

On June 25, 1883, the paramour filed a petition in the case, asking the court to rehear-the case as to her and to permit her to defend it. Her said petition represented that she was a resident.of Beaver county, Pennsylvania; “that said decree was also' rendered against petitioner by default, she never having appeared or made defense; that your petitioner was not served with process in said suit in this State, having been merely served with a copy of said process at her residence in said Beaver, county, Pennsylvania, which, as she was advised by her counsel, was not such service as was binding upon her, and that she had never had notice of said decree until in June, present, 1883.” .

This was accompanied by an affidavit of the divorced husband that the land had been sold by the commissioner at sixteen and a third per cent less than its value, and by a written offer of the paramour to bid five per cent more for the land if the commissioner’s sale was disapproved and the land ordered to be resold.

The trial court denied the petition, and the husband appealed from the order overruling his demurrer, and the paramour appealed from the order denying her petition for a rehearing.

The Supreme Court first disposed of the points raised by the demurrer of the divorced husband, and then took up the paramour’s petition.

Upon this branch of the case the Supreme Court referred to the statute of that State providing for orders of publication, and which also provided for a personal service of a summons, etc., on a non-resident of that State made in the State in which such nonresident lived, and which declared that such personal service should have the same effect as an order of publication. The statute also provided that the re- ' turn upon such summons, etc., of such personal service, “must be under oatb, and must show the time and place of such service, and that the defendant so served is a non-resident of this State.”

The statute further provided that such non-resident, if not served personally with a copy of the judgment, might appear at any time within five years from the date of the judgment, and file a petition for a rehearing, but if served with a copy of the judgment, within five years from its date, he must appear and file his petition for a rehearing within one year after being served with a copy of the judgment.

The statute further provided that in cases of judgments, upon publication, in attachment suits, the defendant might appear as aforesaid and petition for a rehearing, but that if the land had been sold, the subsequent proceedings should not affect the title of any bona fide purchaser of such land, so purchased at the sale under attachment. The statute further provided that this provision, last stated, should not apply to any case in which the petitioner or his decedent was served with a copy of the attachment or with process in the suit more than sixty days before the date of the judgment, or to a case where he appeared and made defense.

After citing the statutory provisions aforesaid the court held that: “The statute did not contemplate a case like this. It speaks of rehearing, where the suit has been heard upon an order of publication, or where the summons has been served upon the party outside of the State, and the statute positively requires that-‘in such case the return must be under oath and must show the time and place of such service, and that the defendant so served is a non-resident of this State. ’ It would be dangerous to permit the record to be contradicted in such a way. If the return had been made as required by the statute, no more difficulty would be apparent, than if the cause was heard on an order of publication. But as it is, the defendant- asks to be permitted to contradict the return of the sheriff upon the summons issued in the cause, and this, after the decrees are all entered upon the bill taken for confessed as to such defendant.”

Or otherwise stated, the sheriff’s return was that he served the summons upon her personally in the State of West Virginia. It was conceded that she was a resident of Pennsylvania, but that fact would not show upon its face that she was not personally in West Virginia at the time the summons was served upon her. The statute only authorized a petition for rehearing where the judgment was based upon service by publication, ox instead of publication, where the summons was personally, served upon the non-resident, and in the latter case it required the return to be under oath (manifestly because not made ex officio by an officer of the State in which the suit was pending) and to state the time and place o*f the service and that the defendant was a non-resident.

In that case, the return having been made ex officio by the sheriff, and showing service in the State of West Virginia, the statute plainly had no application and the court so held, but as the Supreme Court said (l. c. 179) the petitioner asked to be permitted to contradict the return of the sheriff showing personal service on her in West Virginia.

That case therefore resolved itself into the right of a defendant to contradict the return of the sheriff, independent of the statute, and it was in determining that point that the court examined the law upon that subject, and delivered the able and exhaustive opinion, which is hereinbefore set out.

It is therefore wholly incorrect to say that was a proceeding under the statute of that State, and likewise incorrect to say that the court did not discuss the question of equity jurisdiction.

The case was a suit in equity. The petition of the paramour was for a rehearing in the equity case. The' application for leave to contradict the sheriff’s return was made to a court of equity, after judgment. The court in deciding the case was speaking as a court of equity. It is said, however, that the application was in the original ease, and therefore it was properly denied, hut if it had been in the shape of a separate bill in equity, the case would have been different, and what the court said would then have been pertinent to the question of equity jurisdiction.

The contention is too abstruse for comprehension. The parties were already in a court of equity, and the whole case was before the court, as- fully as it could ever be. To deny them relief in equity in the original case in equity, and then to accord them relief in equity in another suit in equity to accomplish the same purpose, would be sheer mockery.

This ought to dispose of the criticism.

Goddard v. Harbour, 56 Kan. 744, is disposed of with the criticism that relief in equity was invoked upon the sole ground that the sheriff’s return was false, without alleging any meritorious defense. This is one -of the best considered cases in the books, and the whole subject'is learnedly discussed, and the r-ule of the common law adhered to. The Supreme Court considered the question of the jurisdiction of a court of equity to set aside a judgment at law. It never mentioned that relief was denied because no meritorious defense was shown. It will certainly'be instructive to that court to learn that the result reached by it was right, because in addition to the charge of falsity of the sheriff’s return there was no showing of meritorious defense, but that its reasons for reaching that result are of no consequence, because the case could have been, but was not, decided upon other grounds. It is pertinent in this connection to say, however, that the opinion under review classes Kansas as one of the States that adhere to the doctrine contended for by that opinion, and Chambers v. King Wrought-Iron Bridge Manufactory, 16 , and McNeill v. Edie, 24 Kan. 108, are cited as supporting the claim.

In view of the emphatic utterance of the Supreme Court of that State in Goddard v. Harbour, supra, it is not conceivable how Kansas could be so classed, nor how the earlier cases in that State could, now, if ever, be regarded as affording any support to the claim. In the later case the court said: “Counsel for defendants in error cite Bond v. Wilson, 8 Kan. 228; Starkweather v. Morgan, 15 Id. 274; Chambers v. Bridge Manufactory, 16 Id. 270; McNeill v. Edie, 24 Id. 108, and Jones v. Marshall (Kan. App.), 43 Pac. 840, as supporting the proposition that a sheriff’s return may be disputed even in regard to personal service.. In the cases heretofore decided by this court the right to controvert the sheriff’s return has been expressly limited to matters not coming within his personal knowledge, and the opinions in all the cases, including, also, Mastin v. Gray, 19 Kan. 458, recognize this distinction. We do not approve the rule declared in the opinion in the case of Jones v. Marshall, that a sheriff’s return may be controverted as to matters falling within his personal knowledge.”

This clearly takes Kansas out from among the States that adhere to the rule contended for by the opinion under review, and shows that the cases cited, from that State as supporting that contention, to-wit, Chambers v. King Wrought-Iron Bridge Manufactory, 16 Kan. 270, and McNeill v. Edie, 24 Kan. 108, are not considered by that court as affording any basis for that contention.

That court concluded its decision in Goddard v. Harbour,' supra, by saying: “In giving conclusiveness to a sheriff’s return as to those matters coming within his personal knowledge,*we do no more than give it the same credit as the parts of the record written by the clerk, any of which may be corrected under the direction of the court when application is duly made, but can not be contradicted by parol testimony.”

Taylor v. Lewis, 2 J. J. Marsh. 400, and Thomas v. Ireland, 88 Ky. 581, are said by the opinion under review here to “come as near sustaining the contention that a court of equity can not grant relief from a judgment obtained on a false return as any that have ever come under our observation, and yet in neither of those cases was there any effort to show that the parties seeking to set aside the judgments had any defense on the merits or that there was anything in their cases to appeal to the conscience of the chancellor except the bare fact of the false returns.”

Those cases not only come near sustaining the doctrine herein stated, but they state the doctrine clearly, forcibly and emphatically. But of these cases it is said, first, that Taylor v. Lewis has been condemned in a note to that ease by the editor in 19 Am. Dec. 135, and, second, that both of those cases have been overruled in the later case of Bramlett v. McVey, 91 Ky. 151, and an extensive excerpt from that note is reproduced. It will be interesting to know that the same note also condemns the decision of the Supreme Court of the United States in Walker v. Robbins, 14 How. (U. S.) 584, as it also does the decision of the Supreme Court of Nebraska in Johnson v. Jones, 2 Neb. 126.

Of this condemnation it is only necessary to say that it does not appear who conferred authority upon the editor who wrote that note to “condemn” decisions of the Supreme Court of the United States and of the Supreme Courts of Kentucky and Nebraska. But the editor evidently did not know that the Supreme Court of the United States reaffirmed Walker v. Robbins, in Knox Co. v. Harshman, 133 U. S. 152.

Aside from this, however, an examination of that criticism shows that the editor did not go very deeply into the question, nor examine the authorities very carefully, for in support of his statement that the weight of authority is against the law as announced in the cases so “condemned” by him, he relies principally upon Ridgeway v. Bank, 11 Humph. 525. He also cites other cases from Tennessee, Alabama, "Wisconsin, Iowa and the case of Owens v. Ranstead, 22 Ill. 161, which last case is clearly in conflict with the later case of Hunter v. Stoneburner, 92 Ill. 75, as hereinbefore pointed out.

The courts of the other States referred to proceed upon the theory that the return of the sheriff is only prima facie evidence and hence can be corrected, by motion, in the original case before judgment. Or else they treat a false return as a fraudulent return, and illogically hold the innocent plaintiff responsible for the act of the sheriff. For this reason those courts logically hold that it can be impeached in equity after the judgment. But the editor did not cite, if he knew, the many cases from other States (Missouri among the number) that hold that the sheriff’s return is conclusive between the parties to the original case before judgment and therefore logically and necessarily hold that it can not be attacked in equity after judgment, except for fraud, in which the party benefited by the judgment participated, or except in a direct suit against the sheriff.

This is the true test and basis of the different rules adopted in the several States, and when this test is borne in mind the whole subject is easy of comprehension. Those States that follow the common law rule that the sheriff’s return is conclusive in the original ease before judgment, hold that the return is impervious to attack in equity after judgment except for some fraud in th© very concoction of the judgment (and the falsity of the return does not constitute such a fraud), in which fraud the party benefited by the judgment participated, or except in a direct suit against the sheriff. And those States that hold that the-return is only prima facie evidence, permit the return to be impeached by motion in the original action before judgment or by a bill in equity after judgment.

This is the logic of the two lines of decisions. Missouri, in an unbroken line of eases from Hallowell v. Page, 24 Mo. 590, to Feurt v. Caster, 174 Mo. l. c. 297, has always held that the return is conclusive in the original case, before judgment, and in the only case, before this case, that has come before it that directly involved the question (McClanahan v. West, 100 Mo. 309) has held that the return could not be impeached in equity, after judgment. And if the rule thus announced is to be changed in this case, as to attacks in equity after judgment, this court would have not only to overrule MeClanahan v. West, but also all the prior decisions in this State that hold that the return can not be impeached, by motion, in the original case, before judgment, and thus to abandon the common law rule and take sides with those States that hold contrary to the common law rule. For it would be an incongruous state of the law to hold that the return was conclusive, in the original cáse, before judgment, but was only prima facie in an attack upon it, in equity, after judgment. As hereinbefore pointed out, under such a rule, a defendant could stand aside until after final judgment, and could then wait until his property had been sold under execution and his debt paid out of the proceeds, and could then come in and recover his property by a bill in equity upon a simple showing of the falsity of the return and á meritorious defense. Unless this court should be satisfied that the wisdom of the common law and of all the judges that have heretofore constituted this court has been at fault, it could not assume this position.

But it is said that the Kentucky cases cited have been overruled by the later case of Bramlett v. McVey, 91 Ky. 151. This is not an accurate statement of the matter. The earlier cases have not been overruled. Bramlett v. McVey, 91 Ky. 151, was a proceeding under

•a statute of Kentucky that was enacted after the prior ■cases had been decided, which permitted a party to impeach the sheriff’s return “where either the party ben•efited by the judgment has fraudulently procured return of service, or where the officer has made it by mistake.” And the court referred to Taylor v. Lewis, 2 J. J. Marsh. 400, and Shoffet v. Menifee, 4 Dana 150, and said that they held that “it was incompetent for a-party to aver or prove the falsity of a return made by a proper officer in a collateral mode without a direct proceeding against the officer himself.” And the-added: “But the statute we have quoted was evidently intended, and does, in terms,' authorize an officer’s return to be put in question where the conditions therein mentioned exist.” Then the court proceeded to point ■out that the case at bar'was an attack upon the sheriff’s return in a criminal case to the effect that he had ex--ecuied the capias, when he had not done so, upon which return a judgment was entered, and an execution of ■ capias pro fine was issued, under which the sheriff was about to seize the body of the plaintiff, and the court held that the rule laid down in the prior adjudications “in civil cases had no application to criminal cases. And .for these two reasons the prior cases were not followed.

It, therefore, appears that the rule announced by 'the courts in Kentucky can no longer be classed on •either side of the principles under discussion, because, ■of-the statute of that State.

Of Johnson v. Jones, 2 Neb. 126, it is said that the result reached was proper, first, because the plaintiff "broke down in his proof that the return was false, and, second, because no meritorious defense was shown. 'The court called attention to the failure of proof aforesaid,-and said, “This might be sufficient upon this "branch of the case; but, as other and important questions were raised on the argument, they will be noticed.” The court then took up the questions whether the return of the sheriff was conclusive and whether it could be attacked in equity, and after a full discussion of the subject, with the citation of many cases, held that the return was conclusive and could not be impeached in equity, and further held that extrinsic evidence was inadmissible to contradict the return, in equity (as was held by this court in McClanahan v.. West, supra), and cited cases supporting that view, and finally reversed the judgment of the lower court, which awarded the relief asked, without remanding the case. The opinion was written by Chief Justice Mason.

But it is said that in a later case, James v. Howell,. 37 Neb. 320, that court held that relief in equity would be granted if in addition to showing that the return was false the plaintiff showed that he had a meritorious, defense to the original action.

It is true that case so holds. But it is likewise true that Johnson v. Jones, supra, was not referred to, and was not discussed or expressly overruled. And it. is likewise true that the opinion was written by one-of the commissioners of that court, and that no extended or thorough examination of the authorities or-of the underlying principles, was made, and that the whole discussion of the law of the case does not cover-more than a half of one page of the report.

It is interesting to note, however, that in Wilson v., Shipman, 34 Neb. 573, the case of Johnson v. Jones, 2' Neb. 133, was cited by counsel, but the court ignored, it entirely, although relief was asked solely on the-ground that the return was false. The court held “that the jurisdictional facts alleged in the record of a judgment of a court of inferior jurisdiction may be controverted. ’ ’ And then held that the evidence was insufficient to prove the falsity of the return. But the judgment was reversed and the action dismissed for this, reason, and also because no meritorious defense was. alleged or proved. ■

It is, therefore, proper to leave to the Supreme-Court of that State the determination of the question.■whether it will adhere to the exhaustive decision of Chief Justice Mason, in Johnson v. Jones, or whether it will regard it as inferentially overruled by the commissioner’s opinion aforesaid,” in James v. Howell, or by the decision in Wilson v. Shipman.

Of Gardner v. Jenkins, 14 Md. 58, it is said that the bill proceeded solely upon the ground that the original action was prosecuted in the city of Baltimore, while the defendant therein resided in the county of Baltimore and was served in the county, and that he admitted he owed a part of the amount fojc which judgment was rendered, but did not offer to pay'what he owed.

This is not a full statement of the case. The plaintiff further alleged that when the officer attempted to serve him he informed the officer that he lived in the county and was not liable to be. sued in the city, and that the officer told him “he would so report, and that complainant need trouble himself no further on the subject,” and that, relying upon this statement of the officer, he paid no further attention to the matter, but supposed that the writ would be returned “non est.” The bill charged that the officer returned the writ as served, and asked that the judgment be vacated for this fraud of the officer. The court said: “The bill does not allege any fraud on the part of the appellant” (who was the plaintiff in the original action) “but merely against the deputy of the sheriff of Baltimore City. . . . ‘Courts of chancery do not lightly interfere with judgments at law. It is only for the prevention of fraud, or to relieve from substantial injury or gross injustice, that its high and extraordinary power of interference by injunction is ever resorted to.’ ” The court then said that as the bill contained no offer to ' pay what was admitted to be due, relief would be denied, and finally added: ‘ ‘ Besides these objections, the party ■ had a right to proceed under the Act of 1787, chapter 9, and he availed himself of it. The judgment of the court being against him he is concluded thereby. ’ ’ Accordingly, relief in equity was denied him.

The act referred to seems to have been a statutory remedy against the sheriff on his bond for a false- return, although the act itself is not accessible. If it is-as it appears to be, then the case is valuable in the case at bar as showing that when a defendant who has been wronged by the sheriff’s return pursues his-remedy against the sheriff, he can not afterwards he-heard in equity to set aside the - judgment based upon such a return, but must stand by his election.

At any rate the criticism fails to impair what the-court said with respect to the necessity of alleging-fraud on the part of the plaintiff in the original action.

The criticism of Preston v. Kindrick, 94 Va. 760, is that the rights of third innocent persons had intervened, that is, that the property had been purchased at the foreclosure sale by the plaintiff and had been sold by him to another person, and therefore it is reasoned that what is said in that case upon the right to equitable relief, is of no consequence, in this discussion.

An examination of that case, however, shows that the relief was asked upon the ground that the return was false and that knowing it to be false, the plaintiff took advantage of it, and obtained judgment. This subject is very thoroughly considered and the cases analyzed, as is also the doctrine laid down in Freeman on Judgments, section 495 (which is so much relied on in the opinion under review here), and the distinction is pointed out by that court between the rule that obtains at common law and in the States herein referred to, that the return is conclusive both before judgment, and afterwards in equity, except for fraud on the part of the plaintiff in the original action, and the rule that obtains in other States where the return is held to be only prima facie evidence, and hence is subject to attack, both before and after judgment, and the former is declared by the Virginia court to be the better doetrine, and the case is decided upon that principle. The criticism thereof in no wise impairs the force of that case.

Under such a state of adjudication in other jurisdictions it is not conceivable how it can be said that not one of those eases can be said to deny jurisdiction in equity in a case like the one at bar.

IX.

The opinion under review here quotes from Story’s Equity Jurisprudence, Pomeroy’s Equity Jurisprudence, Freeman on Judgments, Black on Judgments, High on Injunctions, and the American and English Encyclopedia of Law, and then cites forty-six cases from nineteen States, and concludes that the weight of. authority sustains the contention that the rule is that a court of equity will relieve against a judgment at law, where the sheriff’s return is false, if the defendant had a meritorious defense to the action, without any allegation or proof of fraud upon the part of the plaintiff in the judgment.

Of the nineteen States so classified it has already been shown that such is not the rule in Illinois, Indiana or Kansas, but that the doctrine herein announced is the rule that obtains in those jurisdictions. These three States must therefore be taken out of the list, which would leave sixteen States to be considered.

' It has also been herein shown that the courts of' Kentucky followed the rule herein announced, until a. statute-was pagsed which permitted the judgment to be set aside in equity not only for the fraud of the plaintiff therein in procuring the return, but also for the mistake of the officer in making the return. -This takes Kentucky out of the list of nineteen States, and leaves it in a statutory class to itself. This leaves fifteen States to be considered.

The fifteen States remaining are, Alabama, Arkansas, California, Colorado, Connecticut, Iowa, Minnesota, Mississippi, Montana, Pennsylvania, Rhode Island, Tennessee, Texas and Wisconsin and possibly Nebraska.

Of these, the following hold that it is only necessary to show the falsity of the return, and that no showing of a meritorious defense need be made: Connecticut (Watson v. Watson, 6 Conn. 334, and Jeffery v. Fitch, 46 Conn. 601); Minnesota (Magin v. Lamb, 43 Minn. 80); Tennessee (Ridgeway v. Bank, 11 Humph. 523; Ingle v. McCurry, 1 Heisk. 26); Alabama (Stubbs v. Leavitt, 30 Ala. 352; though in the case of Rice v. Tobias, 89 Ala. 214, the element of meritorious defense was held to be necessary, in addition to the falsity of the return); Mississippi (Quarles v. Hiern, 70 Miss. 891; but see Walker v. Gilbert, Freeman’s Ch. Rep. 85, where it was held necessary to also show a meritorious defense); Wisconsin (Pollard v. Wegener, 13 Wis. 569. But in this connection it is proper to note that the case of Johnson v. Coleman, 23 Wis. 452, cited in the opinion under review, proceeded upon the ground that relief in equity can be obtained only for fraud of the plaintiff in the procuring of the judgment. In that case it was alleged and shown that the plaintiff knew that the summons had not been served upon the defendant, yet he took advantage of the false return); Iowa (Newcomb v. Dewey, 27 Iowa 381; Ins. Co. v. Waterhouse, 78 Iowa 674.); Oregon (Huntington v. Crouter, 33 Oregon 408); Texas (Cooke v. Burnham, 32 Tex. 129; Glass v. Smith, 66 Tex. 548).

In the following cases it was- held that in order to obtain relief in equity it was necessary to show not only that the return was false, but also that the defendant had a meritorious defense to the action: Arkansas (State v. Hill, 50 Ark. 458. At first it was held in Arkansas that the relief would be granted upon a simple showing that the return was false, Ryan v. Boyd, 33 Ark. 778, but in State v. Hill, 50 Ark. 458, it was held that this was not enough ánd that a meritorious defense must also he shown) • California (Gregory v. Ford, 14 Cal. 138. But in this connection the case of Martin v. Parsons, 49 Cal. 94, should be read, where relief was granted upon the sole ground that the return was false, without showing a meritorious defense) ; Colorado (Wilson v. Hawthorne, 14 Colo. 530); Montana (Hauswirth v. Sullivan, 6 Mont. 203); Nebraska (James v. Howell, 37 Neb. 320; Wilson v. Shipman, 34 Neb. 573; see Johnson v. Jones, 2 Neb. 126); and Pennsylvania (Miller v. Gorman, 38 Pa. St. 309).

From this it appears that in nine States the rule is that equity will grant relief against a judgment at law, upon the sole ground that the sheriff’s return is false, without any showing of a meritorious defense, while in six States it is held to be necessary to show a meritorious defense in addition to the falsity of the return. To this must be added the text-writers referred to.

On the other hand, it is held in the following States that equity will not restrain the enforcement of a judgment, regular on its face, unless it was procured by fraud and the plaintiff in the action.participated' in the fraud: Georgia, Illinois, Indiana, New Hampshire, West Virginia, Kansas, Maryland, Virginia, Kentucky (until changed by statute) and Missouri.

• In addition to the decisions of these States, the decisions of the Supreme Court of the United States and the English cases must be added.

■ Upon this showing the weight of authority cannot be said to be in favor of the rule contended for in the opinion under review.

The sum of the whole matter is this, that in those States that hold that equity will interfere upon a showing that the return is false, or that it is false and that the defendant therein had a meritorious defense, the ruling is based upon tbe ground that the return of the sheriff is only prima facie evidence, and hence may be attacked by motion, before judgment, in the original case, or in equity, after judgment.

Whereas in those States wherein relief in equity is granted only where fraud in the very concoction of the judgment is shown, the English rule is followed, that the return of the sheriff is conclusive (except when attacked for fraud or in a direct suit against the sheriff) both before judgment, in the original ease, and after judgment, in equity.

Missouri has always held that the return is conclusive before judgment in the original case, and in the only case that has come before this court (McClanahan v. West), it was held to be conclusive after judgment, even in equity.

The question therefore is not which side of the controversy Missouri will take, but the real question is whether this State will recede from its previous course, and overrule all its prior adjudications. It can not take the position contended for in the opinion under review without overruling McClanahan v. West, supra. and also all the cases from Hallowell v. Page, 24 Mo. 590, to Feurt v. Caster, 174 Mo. l. c. 297. Por it would be incongruous, illogical and unscientific to hold that the return was conclusive in the original action, before judgment, but that it was only prima facie evidence after judgment in a suit in equity.

As was well said by the Supreme Court of West Virginia in Stewart v. Stewart, 27 W. Va. 167, “we see no reason for departing from the rule of the common law. If it is thought wise to permit the return of a sheriff on mesne or final process in any case, where the suit is not against him or his sureties for a false return, to be contradicted, the Legislature should furnish the remedy. We think the rule of the common law was founded in reason.”

As was said by the Supreme Court of Kansas, in Goddard v. Harbour, 56 Kans. 744, “much can be said by way of argument for and against the rule which makes the sheriff’s return conclusive. We deem it the safer course to yield our assent to a rule which has met with the approbation of so large, a majority of the courts, and incline to the opinion that the weight of reason rests with .that of authority. ’ ’

And as was said by the Supreme Court of Virginia, in Preston v. Kindrick, 94 Va. 760, “the better doctrine ’ ’• is that the return is conclusive, except when attacked for fraud in which the' plaintiff participated, or in a suit hgainst the sheriff.

X.

The force of the decision of this court, in McClanahan v. West, as applicable to the subject under discussion, is sought to be broken, by the claim that the suit in equity was not predicated upon an allegation that the return was false, but only upon the proposition that the record was silent as to service.

This is a total misapprehension, as is shown by the language of the opinion, which is: “ But it is unnecessary to rule the point now” (the point was as to attacking a judgment collaterally for fraud in its very concoction) “for the obvious reason that there is no tendency in the testimony adduced by plaintiffs to show fraud in the proceeding or copeoction of the judgment, nor of any connection of the defendants therewith. This being the case, parol evidence was wholly out of place to show that the plaintiff had not been served with process in the partition suit. And this is true notwithstanding that the judgment in that suit is silent as to the acquisition of jurisdiction by service of process upon her.”

This conclusively, shows that parol evidence had been introduced to show that she had never been served with process, and that she did not rely upon. the silence of the record as to service. It is further shown by the opinion that parol evidence was admitted to show that the process was lost and that it showed personal service upon her, and this court said that while parol evidence was admissible to show the contents of the lost process and the return thereon, yet parol evidence was wholly inadmissible to contradict such return on the presumption of service arising where the record is silent as to service.

The attempt to impair the force of this case has therefore failed.

It is material here, to say, however, that this case has another important bearing on the case at bar. It is admitted in the opinion under review that if a third person had purchased the property at the sale under the original judgment of Judd v. Smoot, equity would not interfere, but that as Judd purchased it, the judgment and sale are open to attack in equity — notwithstanding it is conceded that Judd was an innocent party, was in Kentucky all the time, and had no knowledge or suspicion that the return was false.

In McClanahan v. West, the opinion shows that West was a party plaintiff in the original suit, and that he purchased the property at the sale under the judgment, He afterwards died and the suit in equity was against his heirs, who, of course, stood in his shoes and had no better right or equity than he had.

Yet the return was held conclusive and parol evidence held to be wholly inadmissible to contradict it, and relief was denied because no fraud was shown in the very concoction of the judgment, and the plaintiff in the judgment was guilty of no fraud.

This disposes of the contention that the rule is that third innocent parties who buy at the judicial sale are protected by the judgment, but that an innocent party to the suit who purchases at the sale is not protected ; and this also disposes of the case at bar.

SI.

It is said in the opinion under review, and in some of the cases therein cited, that the question of service of process is a question of fact, and that it is not only intolerable but also against the constitutional guaranty that no person shall be deprived of life, liberty or property without due process of law, that a judgment rendered upon a return of process that in fact, was not true, should be allowed to stand, and that if the defendant did not know of the false return until after judgment, and, therefore; could not question it before judgment, it would be unconscionable to deny relief in equity.

On its face this argument sounds very plausible, but upon analysis the infirmity of the contention is at once apparent.

If the contention is true, it is passing strange that the Supreme Court of the United States did not discover it in the cases herein referred to when it denied relief in equity where the direct question was involved.

But the opinion under review here, seeks to ‘‘ hoist ’ ’ the writer of this opinion ‘1 on his own petard’ ’ by citing the opinion in the case of Hunt v. Searcy, 167 Mo. 158, which was written by the writer' hereof, as authority for the position contended for.

This is a total misconception of what that case decides. In that case there was no question of a false return involved, nor was there any pretense that any process or notice was ever attempted to be issued to or served upon the person whose sanity was to be inquired into, but on the contrary it was there claimed that the statute of this State expressly authorized the inquiry de lunático without any notice to such person. It. was with such a statute that the opinion in that case was dealing. The difference between that and the case at bar is apparent.

Of course it is conceded by all courts that no court has jurisdiction to render a judgment in any case unless it has jurisdiction both of the person and of the subject-matter.

But neither in this nor in any of the cases contemplated by the rule herein announced was there an absence of a showing upon the face of the record that the defendant had notice. They all proceed upon the theory that the defendant appears by the face of the record to have had notice and that it was served upon him in the manner and by the officer provided by law. This constitutes due process of law within the meaning of the State and Federal Constitutions.

The vital question in every case is, did the defendant have notice? The difference between the cases is only as to the method of establishing the fact that he had such notice. The one rule is that the sheriff’s return. is the only proper evidence of that fact, and the other rule is that the fact is always an open one to be determined from the parol evidence adduced by the parties. The former rule gives full value and force to judicial proceedings. The latter rule deprives all judgments of their integrity and makes tkemimpossible of being enforced, for no one would buy at a judicial sale when he might thereafter be deprived of the property by a decree in equity setting aside the sale and judgment.

XII.

On the facts of the case at bar it is said that Mrs. Smoot is an innocent party and had a meritorious defense, and that while Judd was innocent of all fraud, the real defendants herein, Brand and Jackson, are not innocent purchasers, but purchased with knowledge that the return of the sheriff in the original case was false.

The process employed to show that Brand and Jackson had such knowledge is that before they bought at the partition sale they consulted Mr. Wray, who was also Judd’s attorney, and that as attorney for* Judd Mr. Wray knew that the return was false, and therefore Brand and Jackson are charged with such knowledge.

This conclusion is erroneous in law and in fact. ■ In law, because a principal is only charged with notice acquired by his agent while the agent was engaged in the business of the principal. [Merchant’s Natl. Bank v. Lovitt, 114 Mo. 519; Traber v. Hicks, 131 Mo. 180; Donham v. Hahn, 127 Mo. 439.] To affect the principal, the knowledge possessed by the agent must have come to the agent during his agency, and not after -or before. [Anderson v. Volmer, 83 Mo. 403.]

And erroneous in fact, because neither Mr. Wray nor any other member of' his law firm knew or had any suspicion at the time Brand and Jackson consulted them about buying at the partition sale, that the sher- . iff’s return as to Mrs. Smoot was untrue.

‘On the contrary, Mr. Wray testified in this ..case that at that time no one had ever intimated such a thing to him, and he never heard of it until this suit was brought, which was nearly four years after the original judgment was rendered, and nearly a year after Brand and Jackson had consulted him and had bought at the partition sale.

Instead of Mr. Wray having .any such knowledge at the time Brand and Jackson consulted him, the record shows that after the original judgment was rendered, which was on September 18, 1891, and after an execution had been issued thereon, which was on January 20,1892, Mrs. Smoot came to see him, and sent her 'attorney to see him, to get an extension of time in which to pay the judgment, with the result that he gave her twelve months in which to -do so, and that neither at that time nor during the said twelve months, nor when she filed her answer in the partition suit .on February 23, 1894, nor at any time before this suit was begun on August 18, 1895, did she ever intimate that there was any question about the truth of the sheriff’s return.

It cannot, therefore, be fairly said that Brand and Jackson are charged with notice of the falsity of the return by reason of any knowledge Mr. Wray had of that fact or otherwise.

The sum of the whole case is that Brand and Jackson are innocent third persons who purchased at a judicial sale under a judgment of a court of competent jurisdiction whose record showed service of process upon Mrs. Smoot. Judd and his attorneys are entirely innocent parties and are not even charged with being parties to or having knowledge of the falsity of the return. Mrs. Smoot, on the contrary, admits that she knew as early as 1893 (Mr. Wray and her attorney, Mr. Oole, say she knew of it before the sale of the land under the execution upon the original judgment in January, 1892, when it was agreed that Judd should buy the property at the sale and give her twelve months in which to redeem), that the land had been sold under the judgment, yet she never mentioned at that time, nor when she filed her answer in the partition suit on February 23, 1894, nor until this suit was filed in August, 1895, that the sheriff’s return was false.

As between Mrs. Smoot on the one side and Brand and Jackson on the other there is no room for controversy that Brand and Jackson are the innocent parties, and that Mrs. Smoot’s conduct in waiting for over two years after she knew that the judgment had been rendered upon a return .of the sheriff showing personal service upon her without challenging that return, has caused Brand and Jackson to spend their money in the purchase of the land, and therefore there is no equity in her case.

XIII.

This only leaves for consideration the contention that when Mrs. Smoot sued the sheriff for false return, the jury gave her only nominal damages, and hence as she has failed to receive adequate compensation at law, equity should give her relief by taking the property away from Brand and Jackson and restoring it to her.

This same argument might be made as to every judgment at law when a plaintiff recovers only nominal damages, or where he or a chancellor thinks the amount recovered at law was not full compensation — for it is said that the amount recovered at law should be credited on the sum the chancellor may think would be proper compensation.

If such a rule is to be established it would be better to abolish juries and courts of law at once and throw everything into equity.

Courts of law will have to prove themselves greater failures than this record.shows them to be before any such change, or any such supervision over their judgments by courts of equity, will be tolerated or looked upon with patience by the people, who have always, or at least since the days of Magna Charta, jealously guarded the right of trial by jury.

This is a case of misplaced sympathy for Mrs. Smoot on the part of the learned judge who wrote the opinion under review here. Instead of Mrs. Smoot being a grievously wronged person, she has been treated with the greatest consideration and leniency. She mortgaged' her property to secure the note in question, and at her request Judd released the mortgage. The note on which the judgment was rendered was dated April 15, 1887, and was payable one day after date. Judd waited until four years after the note was due before he sued on it. After the judgment he agreed with her to buy in the property at the execution sale and to give her twelve months to redeem it. He waited nearly two years for her to redeem, and when she did nothing, he filed the partition suit. The land was not sold in partition for eleven months after the partition suit was instituted. After it was so sold Mrs. Smoot waited nearly a year before she brought this suit. Thus she had seven years and a half in which to pay the debt before Brand and Jackson purchased it. During’ all this time she paid nothing, and for four years after the original judgment was entered she never breathed to Judd or his attorneys or to her attorney or Brand and Jackson that there was any question about the truth of the sheriff’s return. And even now, it appears by the finding of two chancellors who have tried this cause in the lower court, that although the original return was not strictly true in showing that she was personally served, nevertheless as found by those chancellors and also by the law-court that permitted the return to be amended and by the Kansas City Court of Appeals that affirmed the judgment in that regard,— it now appears that Mrs. Smoot had notice of the original suit, by the summons for her having been left with a member of her family — her husband — at her usual place of abode, which was a good service on her under the statute of this State.

Upon such a showing there is no merit or equity in her bill and the trial court did right in dismissing it, and the judgment is affirmed. Robinson, G. J., concurs ; Brace, J., concurs in paragraphs 2, 4, 5, 6,12, and 13, and in the result; Burgess, J., concurs in toto; Gantt and Fox, JJ., concur in the result for the reasons expressed in the separate opinion of Fox, J.; Valliant, J., dissents in an opinion, filed by him.