Court of Appeals of Missouri, Southern District, Second Division
FROM THE CIRCUIT COURT OF MISSISSIPPI COUNTY Honorable S. Rob
AND REMANDED WITH DIRECTIONS
W. LYNCH, P.J.
Marie Scott ("Defendant") appeals from a judgment
denying her motion to set aside a default judgment entered
against her, claiming that the default judgment is void
because Defendant was not served with process in a manner and
form authorized by statute. See Rule
74.06(b). Finding merit in her claim, we reverse and
March 31, 2015, Focus Bank ("Bank") filed suit
under chapter 517 in an attempt to obtain a deficiency
judgment after repossessing and selling a vehicle that was
collateral securing a promissory note on which Defendant
allegedly defaulted. On April 27, 2015, Defendant was served
with the petition and summons directing her to appear for a
hearing scheduled for May 5, 2015. On that date, Defendant
did not appear, and the hearing was continued to June 2,
2015. After Defendant failed to appear for the rescheduled
hearing, the trial court entered a default judgment against
moved to set aside the default judgment on May 24, 2016,
alleging that service was improper in that she was summoned
to appear only eight days from the date of service, which was
less than the ten-day minimum provided under section
517.041.1. This defect, Defendant contends, rendered
the trial court's default judgment void for lack of
personal jurisdiction. The trial court entered its written
judgment denying Defendant's motion to set aside, and
sole point relied on, Defendant contends, "The trial
court erred in denying Defendant's motion to set aside
the default judgment because the default judgment is void in
that Defendant was not served with process, or summoned, in a
manner and form authorized by statute." Bank did not
file a brief in this appeal but notified this court via
correspondence that "it believes the relief requested by
[Defendant] is appropriate under the circumstances."
A trial court's ruling on a rule 74.06(b) motion is in
the nature of an independent proceeding and is appealable.
Normally, a court's action under Rule 74.06(b) is
reviewed for abuse of discretion. However, as the
determination of personal jurisdiction is a question of law,
whether a judgment is void on jurisdictional grounds under
Rule 74.06(b)(4) is subject to de novo review. Finality of
judgments is favored and the concept of a void judgment is
narrowly restricted. A judgment is void under Rule
74.06(b)(4) if the trial court: (1) lacked subject matter
jurisdiction, (2) lacked personal jurisdiction, or (3)
entered the judgment in a manner that violated due process.
Bate v. Greenwich Ins. Co., 464 S.W.3d 515, 517 (Mo.
banc 2015) (quotation marks and internal citations omitted).
jurisdiction refers to the power of a court to require a
person to respond to a legal proceeding that may affect the
person's rights or interests. J.C.W. ex rel. Webb v.
Wyciskalla, 275 S.W.3d 249, 253 (Mo. banc 2009). "A
summons is a means by which a defendant is subjected to the
jurisdiction and judgment of the court that has issued the
process." State ex rel. Illinois Farmers Ins. Co. v.
Gallagher, 811 S.W.2d 353, 354 (Mo. banc 1991).
"Inherent in our law has long been the concept that the
underlying principle of a summons is to place a defendant on
notice of an action filed against the defendant to enable the
defendant to appear and defend against the action."
Hometown Lumber & Hardware, Inc. v. Koelling,
816 S.W.2d 914, 916 (Mo. banc 1991). "Proper service of
process must be accomplished before a court can obtain
jurisdiction over the person or property of a
defendant." Reisinger v. Reisinger, 39 S.W.3d
80, 83 (Mo.App. 2001). "Absent a general appearance or
other waiver of process by the defendant, there must be
service of process in an authorized manner in order for the
court to acquire jurisdiction to determine the rights and
liabilities of the defendant." Shapiro v.
Brown, 979 S.W.2d 526, 528 (Mo.App. 1998).
517 sets out provisions that "apply to the practice and
procedure in [certain] civil cases originally filed before
associate circuit judges. " Section 517.011.1. In the
underlying action, service of process is governed by section
517.041.1, which provides:
The process in all cases shall be a summons with a copy of
the petition of the plaintiff attached, directed to the
sheriff or other proper person for service on the defendant.
The summons shall command the defendant to appear before the
court on a date and time, not less than ten days nor more
than sixty days from the date of service of the summons.
Section 517.041.1 mandates a minimum often days between the
date summons is served and a hearing is scheduled in order to
provide a defendant adequate notice and time to prepare a
defense. That did not happen here as Defendant was summoned
to appear on May 5, 2015, only eight days after the summons
the statutorily prescribed requirements for process and the
manner of service are not met, the court in which the action
is pending is without power to adjudicate"
Finnigan v. KNG Invs., Inc.,158 S.W.3d 808, 810
(Mo.App. 2005), and any "judgment entered without
personal jurisdiction over a party is void[, ]"
Reisinger, 39 S.W.3d at 83-84; see, e.g., Worley
v. Worley,19 S.W.3d 127, 128-30 (Mo. banc 2000)
(finding that because service of process had not been
conducted in conformity with the provisions of section