Charley v. Kelley

• Decision Date: 05 February 1894
• Citation: 25 S.W. 571,120 Mo. 134
• Parties: Charley, Appellant, v. Kelley
• Court: Missouri Supreme Court

25 S.W. 571

120 Mo. 134

Charley, Appellant, v. Kelley

Supreme Court of Missouri, First Division

February 5, 1894

Appeal from Jackson Circuit Court. -- Hon. J. W. Henry, Judge.

Affirmed.

H. M Meriwether and Johnson & Lucas for appellant.

(1) The jurisdiction of inferior tribunals must appear on the face of the record, and the same rule holds as to courts of general jurisdiction when in the exercise of statutory powers. Harris v. Hunt, 97 Mo. 574; Gibson v Vaughn, 61 Mo. 418; Ellis v. Railroad, 51 Mo 200; Railroad v. Campbell, 62 Mo. 583; Freeman on Judgments [4 Ed.], sec. 123, p. 207; Freeman on Judgments [4 Ed.], sec. 127, p. 222; Freeman on Void Judicial Sales, sec. 8. (2) In the case of Halpin v. Charley, the court was exercising special statutory powers. City of Kansas v. Ford, 99 Mo. 91; Freeman on Judgments, sec. 127, p. 222, and authorities above cited. (3) In such a case it is error to admit evidence to show jurisdiction. This must appear from the face of the record itself. Gibson v. Vaughn, 61 Mo. 418; Burnett v. McCluey, 78 Mo. 689; Reinhardt v. Lugo, 86 Cal. 395; Freeman on Void Judicial Sales, sec. 8. (4) In the case of Halpin v. Charley there was no foundation for an order of publication, and this is a jurisdictional defect. R. S. 1889, sec. 2022; Adams v. Cowles, 95 Mo. 507; Davis v. Lumber Co., 31 P. 187; Crow v. Myersick, 88 Mo. 415; Platt v. Stewart, 10 Mich. 260; King v. Harrington, 14 Mich. 532; Cook v. Farmer, 12 Abb. Pr. 359; Barber v. Morris, 37 Minn. 194. (5) No order of publication was in fact made by either the court or the clerk. Hence the court acquired no jurisdiction over the defendants Charley and Boyer, and its judgment was absolutely void as to them. Freeman on Judgments, sec. 127, p. 222. (6) Defendant Charley being an infant, the court had no power to proceed against him without the appointment of a guardian ad litem, and having failed in this, and he not having appeared in person or by attorney, the judgment as to him is absolutely void. Jurisdiction is the right to hear and determine, and this the court did not have. R. S. 1889, sec. 2005; Carrigan v. Drake, 15 S.E. 339; Whitney v. Porter, 23 Ill. 445; Lehew v. Brummell, 103 Mo. 546; Freeman on Judgments, sec. 143, p. 259; sec. 118, p. 178; secs. 144, 146, p. 262; Freeman on Void Judicial Sales, sec. 7; Dohms v. Mann, 76 Iowa 723; Windsor v. McVeigh, 93 U.S. 277; Fithian v. Monks, 43 Mo. 502.

W. C. Scarritt for respondent.

(1) In enforcing the lien against land for taxes the circuit court is a court of general jurisdiction, and its judgments in such cases are entitled to all presumptions in favor of their validity that are entertained as to the validity of any judgments. Brown v. Walker, 11 Mo.App. 230; S. C., 85 Mo. 262; Wellshear v. Kelley, 69 Mo. 351; Allen v. McCabe, 93 Mo. 138; Jones v. Driskill, 94 Mo. 197; Gray v. Bowles, 74 Mo. 419; Gibbs v. Southern, 22 S.W. 716. (2) The presumption favorable to the validity of the affidavit and publication can not be attacked collaterally. Goodell v. Starr, 26 N.E. 793; Essig v. Lower, 21 N.E. 1090; Brawley v. Ranney, 67 Mo. 283; Kane v. McCown, 55 Mo. 182; Hardy v. Beaty, 19 S.W. 778; Barnett v. McCluey, 92 Mo. 232; Rugle v. Webster, 55 Mo. 248; Avery v. Good, 114 Mo. 290. (3) And because the presumption as to regularity of proceedings in such cases is so conclusive, the purchaser at a judicial sale is required to look only to the judgment, execution, levy and deed. If these are good he is protected in his purchase. Howard v. Stevenson, 11 Mo.App. 410; State ex rel. v. Sargent, 12 Mo.App. 237; Abbott v. Doling, 49 Mo. 304. (4) Although all the presumptions are in favor of respondent, it is not necessary for him to rely upon them, as the affidavit, order and publication are in due form of law. 2 Wagner's Statutes (1872), p. 1008, sec. 13. If any of the record prior to the judgment was admissible in evidence, then the affidavit of nonresidence was properly admitted, for it is attached to and made a part of the petition, and the petition is a part of the record proper. Bateson v. Clark, 37 Mo. 34; Milner v. Shipley, 94 Mo. 109; Burnett v. McCluey, 92 Mo. 235. (5) The infancy of a defendant will not avoid a sale made upon a judgment against him by reason of the failure to appoint a guardian ad litem, and especially where it does not appear that it was known that the defendant was an infant. Such failure is a mere irregularity, and the judgment rendered is in force until set aside by direct proceedings. Jeffrie v. Robideaux, 3 Mo. 33; Townsend v. Cox, 45 Mo. 402; Walkenhurst v. Lewis, 24 Kan. 426; Porter v. Robinson, 13 Am. Dec. (Ky.) 153, and cases cited in note; Cohee v. Baer, 32 N.E. 920; 9 Am. and Eng. Encyclopedia of Law, 158, and note 2.

Macfarlane J. Black, C. J. does not sit.

OPINION

Macfarlane, J.

This is an action of ejectment to recover an undivided interest in a lot in Kansas City. The judgment of the circuit court was for defendant and plaintiff has appealed.

Plaintiff claims title to one-half of one-third interest as an heir of William Gillis, and one-half of one-third as heir of his deceased brother, Francis Boyer. Defendant bases his title to the property upon a sheriff's sale and deed under an execution upon a judgment of the circuit court of Jackson county, in favor of John Halpin against the said Boyer, plaintiff and others. It is conceded that plaintiff has title unless the sheriff's deed was sufficient to transfer it to the grantee.

The judgment was upon a special tax bill charged against the property in dispute. At the time the suit on the tax bill was commenced, both plaintiff and his brother, Francis Boyer, were minors, and nonresidents of this state. The suit for enforcing the tax bill against the property charged was authorized by the charter of Kansas City. That the execution, levy, sale and sheriff's deed were regular is conceded by plaintiff. The objections are, first, that the court, under the proceedings had, did not acquire jurisdiction of the persons of plaintiff and his brother; and, second, the court had no authority to enter the judgment against plaintiff for the reason that he was at the time a minor and no guardian ad litem was appointed to represent him.

The petition in the suit was filed April 16, 1875. The following order was read from the records of the court:

"Be it remembered, that on the day of , A. D. 1875, in vacation of the circuit court of Jackson county, Missouri, at Independence, the following, among other proceedings, were had and made, to wit:"

Then follows the style of the case, naming John Halpin as plaintiff, and Francis Boyer, a minor under twenty-one years of age, James Charley, Jr., and others, as defendants, and the notice proceeded:

"To Francis Boyer and James Charley, Jr.:

"You are hereby notified that an action has been commenced against you, together with the above mentioned defendants, by the above plaintiff, in the circuit court of Jackson county, at Independence, Missouri."

Then follows a statement of the object and general nature of the petition and a specific description of the property charged with the lien of the tax bill, and concludes as follows:

"Unless you be and appear at the next term of said court, to be begun and holden at the courthouse in said city of Independence, on the thirteenth day of September, 1875, and on or before the third day of said term, if the same so long continue, and if not then before the end of said term, the petition will be taken as confessed, judgment rendered and the lien enforced against said real estate as prayed for in said petition. It is further ordered that publication be made in the 'Evening Mail,' a newspaper published in the county of Jackson, Missouri, for four weeks successively, the last insertion to be at least four weeks before the commencement of next term of said court.

"[Attest] Wallace Laws,

"Clerk.

"Tichenor & Warner, for plaintiff."

To the petition was attached an affidavit made by James Gibson, "that Francis Boyer, minor under twenty-one years of age, and James Charley, Jr., defendants in the above entitled cause, are nonresidents of the state of Missouri, so that the ordinary process of law can not be served upon them."

It was shown by oral evidence that Tichenor and Warner were the attorneys for plaintiff in the suit, and that James Gibson was a clerk in their office, at the time also a practicing lawyer, and had charge of the collections of these tax bills, and that he prepared the petition and made the affidavit and attached it to the petition.

On the twentieth day of September, 1876, a judgment was rendered which contained the following recital:

"Now comes plaintiff by attorney and shows to the court that publication has been made in this cause according to the statutes in such cases made and provided, and in accordance with the orders hereinbefore made in this cause, as to defendants' nonresidence, to wit: Francis Boyer, James Charley, Jr.," (and the other defendants, naming them) "and it appearing to the court that defendants Francis Boyer and Mary Messick are minors, though duly summoned, they have neglected to procure the appointment of a guardian to defend the suit, though more than three days of the term have elapsed, it therefore appoints J. Brumback guardian of said infant defendants in the defense of this suit, and thereupon he filed answer for said defendants, and this cause coming on for trial and being regularly reached on the docket * * *."

This was followed by a regular judgment, charging the lot in suit with the amount of the tax bill, found to be $ 134.43, and ordering a special execution.

The charter of Kansas City, 1875, by virtue of which the tax bills sued on were issued, in article 8, section 4, page 75...