Kellogg v. Moore

• Decision Date: 01 June 1917
• Docket Number: No. 18564.,18564.
• Citation: 196 S.W. 15,271 Mo. 189
• Parties: KELLOGG et al. v. MOORE.
• Court: Missouri Supreme Court

196 S.W. 15

271 Mo. 189

KELLOGG et al. v. MOORE.

No. 18564.

Supreme Court of Missouri, Division No. 1.

June 1, 1917.

Appeal from Circuit Court, Reynolds County; E. M. Dearing, Judge.

Action to quiet title by Mary J. Kellogg and another against Louise C. Moore. Judgment for plaintiffs, and defendant appeals. Affirmed.

Leslie C. Green, of Poplar Bluff, and Ernest A. Green, of St. Louis, for appellant. Arthur T. Brewster and Sam M. Brewster, both of Ironton, and W. A. Welker, of Poplar Bluff, for respondents.

GRAVES, J.

Action to quiet title to a half section of land in Reynolds county. Petition in usual form under section 2535, R. S. 1909. The answer is: (1) General denial; (2) the 10-year statute of limitations; and (3) an allegation which seems to be double in purpose, in that in a portion thereof it would appear that the 30-year statute of limitations was invoked by the allegations made, but in the other portion an invocation of the doctrine of laches. Reply a general denial. The plaintiffs are the widow and heirs at law of Charles W. Tindall. The said Charles W. Tindall acquired title to this land in July, 1876. He died July 11, 1882. Defendant claims title through a sheriff's deed following a sale under tax judgment rendered against Charles W. Tindall and others on November 25, 1882. The supplemental abstract furnished by defendant, and unchallenged here, shows that this tax suit was not instituted until September 15, 1882, or more than two months after Tindall's death. It is conceded that appellant has whatever title may have passed by the sheriff's sale, but it is urged that no title of Tindall passed by that sale. It is likewise conceded that plaintiffs have Tindall's title, unless such title has been divested by reason of the sheriff's deed aforesaid, or by reason of the other matters pleaded in the answer. This sufficiently outlines the case.

I. The first proposition is the validity of the judgment against Tindall in the tax proceeding. The record shows that Tindall (the then record owner of the land) died July 11, 1882, and that judgment was not rendered until the November term of the court for the year 1882. The supplemental abstract of the record (undenied here) shows the order of publication in that tax proceeding. This order of publication is thus headed:

"Order of Publication.

"Reynolds County Circuit Court, to November Term, A. D. 1882. In Vacation, September 15th, 1882.

"In the Circuit Court of Reynolds County, November term, 1882. September, 1882."

This shows a vacation order made on September 15, 1882, or more than two months after Tindall's death. But this is not all. In the body of the order we find this recital:

"At this day comes the plaintiff herein, by his attorney, before the clerk of the circuit court in vacation, and files his petition and affidavit, alleging, among other things, that defendants are not residents of the state of Missouri, and, further, that plaintiff verily believes there are persons interested in the lands herein described, whose names and interest of such parties cannot be inserted because the same are unknown, and that such interest is derived from the United States of America, and that none of the aforesaid can be summoned in this action by the ordinary process of law."

This recital evidences the fact that the petition in this tax proceeding was, in fact, filed on September 15, 1882, which was more than two months after the death of Tindall.

We take it to be the rule of law in this state that, if the court has jurisdiction of the subject-matter, and then acquires jurisdiction of the person by service of process on such person, then the death of such person after the service of process and before judgment, does not render such judgment void, but makes it only voidable. But, on the other hand, if the party is dead prior to attempted service of process, proof of such fact renders the judgment void, and such proof can be made in a collateral proceeding. This is the Missouri rule. We had occasion to review the whole field in the case of State ex rel. v. Riley, 219 Mo. loc. cit. 684, 118 S. W. 647. After a review of our case law (219 Mo. loc. cit. 687, 118 S. W. 653), we then said:

"From all we conclude the right rule to be that, if the party dies during the pendency of a suit wherein the court by legal process has acquired jurisdiction over both the person and the subject-matter, but before judgment, and a judgment is rendered against such party so dying, without there being anything of record showing such death, then such judgment is voidable only, and not void. But, on the other hand, if the party was dead at the institution of the suit, and the court for that reason acquired no jurisdiction over the person or subject-matter, then such a judgment is void."

Prior to the foregoing we had reviewed the cases in this state, and from them we reached the conclusion that the court would have to have both jurisdiction of the subject-matter and the person prior to death in order to put its judgment against a dead person in the category of voidable judgments, rather than void judgments. Jurisdiction of the person is only obtained by service of process. The mere filing of a petition may stay the statute of limitations perforce of the wording of the statute, but this act alone does not confer jurisdiction of the person. Both jurisdiction of the subject-matter and of the person is required before the judgment entered against a party then dead will make such judgment voidable, rather than void.

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