position I have taken, and that the criticisms leveled 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 be 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 either 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 leveled at the cases herein before referred to demonstrates that the criticism is untenable. The first case criticised is Walker v. Robbins, 14 How. (U. S.) 584, 14 L. Ed. 552. As hereinbefore pointed out, that was an injunction to restrain the enforcement of a judgment based upon a marshal's return 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 no 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 herein before 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: "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 be had in the court of law where the record was made, and, if relief cannot be had there, the party injured must seek his remedy against the marshal. We are of the opinion, however, that the return was not false, but, 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, 10 Sup. Ct. 257, 33 L. Ed. 586, is also criticized. That was a bill in equity to restrain the enforcement 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 was 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, 14 L. Ed. 552." 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, supra, 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 would afford at least respectable authority for that position. But in further refutation of the statement, let it be noted that it is herein before 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 cases, and no criticism is leveled 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. pt. 11, p. 36, and Baker v. Morgan, 2 Dow, 526, are herein before 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 were 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 case, 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 Ill. 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 Supreine 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 case contradicts the return, but it cannot be done by evidence dehors the record." Accordingly 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 henee, 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. Laclede Gaslight Co., 84 Mo. 352; Fischer v. Sickmann, 125 Mo. 165, 28 S. W. 435. 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 cannot appoint a guardian ad litem for him, and such a guardian cannot enter his appearance, and the judgment against him is void. The third criticism of that case is that the rights of third innocent persons had intervened, and hence the conclusion 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 no wise 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 or not, for the decree was res adjudicata 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. But as to this feature of this case, more anon. 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, 83 S.W.-32

supra, it is not conceivable how the learned judge could cite the earlier cases in Illinois of Owens v. Ranstead, 22 Ill. 161, Hickey v. Stone, 60 Ill. 458, and Weaver v. Boyce, 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 herein before, as among the states that follow the rule herein announced.

Cully v. Shirk, 131 Ind. 76, 30 N. E. 882, 31 Am. St. Rep. 414, 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 call 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, 4 N. E. 306, nor was it within the rule laid down in Dobbins v. McNamara, 113 Ind. 54, 14 N. E. 887, 3 Am. St. Rep. 626, 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 nonresidence 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 attack was collateral, and said that "any attack upon a judgment for want of jurisdiction in the court to render it, predicated upon matter dehors the record, is collateral." The criticism of this case is therefore untenable.

The criticism of Tullis v. Brawley, 3 Minn. 277 (Gil. 191), 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 had a meritorious defense. 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 language hereinbefore 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., loc. cit. 23? 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 be inquired into in a court of law, but added that the arm of a court of equity is Lot too short to throttle a fraud, consummatted or attempted, having for its basis either a return originally false, or one to be made so by a proposed amendment. If what was said by the Supreme Court of Minnesota in Tullis v. Brawley, supra, is to be discarded as obiter, because uttered in a proceeding at law, then what was said by this court in Phillips v. Evans, supra, must also be obiter for the same reason; and, if this is done, it would leave the opinion under review absolutely without a shadow of support by 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, 13 S. W. 674.

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 by suit against the sheriff, and not by defeating the proceedings in 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 be attacked for fraud, and that, if any one suffers by the default of the officer, "he has his remedy by 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 by the later case of Dowell v. Goodwin, 22 R. I. 287, 47 Atl. 693, 51 L. R. A. 873, 84 Am. St. Rep. 842. 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 case at bar from that case by saying that the rule laid down in that case applied only to commonlaw actions. The court failed to observe that Barrows v. Rubber Co. was not a commonlaw action, 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 cannot 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 will 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 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. Goodwin has overruled the prior decisions in that state, it cannot 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

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 paramour 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, Pa., and that both the said divorced husband and his paramour were nonresidents of the state of West Virginia. The divorced husband appeared and demur- | red 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 30 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, Pa.; "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 16% per cent. less than its value, and by a written offer of the paramour to bid 5 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 nonresident 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 return upon such summons, etc., of such personal service, "must be under oath, and must show the time and place of such service, and that the defendant so served is a nonresident of this state." The statute further provided that such nonresident, 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 pro