Winningham v. Trueblood
| Citation | 51 S.W. 399,149 Mo. 572 |
| Parties | Winningham, Appellant, v. Trueblood |
| Decision Date | 23 May 1899 |
| Court | United States State Supreme Court of Missouri |
Appeal from Laclede Circuit Court. -- Hon. C. C. Bland, Judge.
Reversed and remanded.
L. O Nieder for appellant.
(1) The petition states an executory contract to convey real estate in Wright county, Missouri, and before McClain could bring suit against Winningham, he must terminate such contract by first giving to him reasonable notice in writing; that he, at certain specified time, would terminate the contract; that is, a reasonable time, according to the circumstances of the case, within which he would expect the title to be made as contracted at the peril of rescinding the agreement. Mastin v. Grimes, 88 Mo. 478; Tobin v McCann, 17 Mo.App. 481. (2) Unless the Polk county circuit court, at the time of the rendition of the judgment recited in the answer of the defendants at the April term, 1892, had jurisdiction of the person of the defendants and of the subject-matter in issue, as shown by the whole record, the judgment rendered against C. C. Winningham, was and is void and it makes no difference whether he appeared to the suit or not. Brown v. Woody, 64 Mo. 547. (3) The writ of attachment and the levy under it are void, for the reasons, first, that it would not if served order the defendant, Curtis C. Winningham, to appear at the term mentioned to answer the complaint of anyone; second, because the return of the officer is insufficient in this that it does not show that the levy was made to satisfy any debt, or damages and costs. Nor was the defendant served with a copy of the petition and writ, as required by the statutes governing suits commenced by original attachment. And when the action is commenced by attachment the writ must contain a summons to the defendant. R. S. 1889, sec. 538; Baisley v. Baisley, 113 Mo. 548; Abernathy v. Moore, 83 Mo. 70; Norvell v. Porter, 62 Mo. 311. It appears from the record that C. C. Winningham had no notice of the attachment, either by process served upon him or by constructive notice. The judgment is therefore void, and will be so treated in a collateral proceeding. Brown v. Woody, 64 Mo. 548; Howard v. Thornton, 50 Mo. 292; Adams v. Cowles, 95 Mo. 507; Cloud v. Inhabitants, 86 Mo. 366; Troyer v. Wood, 96 Mo. 480. A notice which falls short in any essential particular of apprising the defendant of the object and nature of the suit commenced, will not be sufficient to authorize a judgment against him. Bobb v. Woodward, 42 Mo. 489; Janney v. Spedden, 38 Mo. 395; Colville v. Judy, 73 Mo. 654; Bobb v. Woodward, 42 Mo. 483; Janney v. Spedden, 38 Mo. 400; Gibson v. Vaughan, 61 Mo. 420; Peake v. Redd, 14 Mo. 79; Abernathy v. Moore, 83 Mo. 68. The return, in order to empower the court to make the order of publication, should have been in the language of the statute. The return of the sheriff and the order of publication itself ignores the statute, section 2024. State ex rel. v. Finn, 11 Mo.App. 410. It is the non est return which constitutes the basis upon which this class of publications are made, it supplies the place of an affidavit of non-residence. State ex rel. v. Finn, 87 Mo. 315. (4) In all cases where constructive or substituted service is had in lieu of that which is personal, there must be a strict compliance with the statutory provision and conditions. Charles v. Morrow, 99 Mo. 646; Quigly v. Bank, 80 Mo. 289; Shell v. Leland, 45 Mo. 289; Wade on Notice, sec. 1030; Settlemeyer v. Sullivan, 97 U.S. 444; Quigly v. Bank, 80 Mo. 297. (5) The court had no jurisdiction to render the judgment against property different from that described in the petition and order of publication, and when it is done, the judgment is absolutely void. Widner v. Shipley, 94 Mo. 109; Janney v. Spedden, 38 Mo. 397; Brown v. Woody, 64 Mo. 548; Cloud v. Inhabitants, 86 Mo. 357; Howard v. Thornton, 50 Mo. 292; Adams v. Cowles, 95 Mo. 506; Hines v. Rule, 121 Mo. 254.
F. M. Mansfield for respondent.
(1) The writ of attachment was duly issued and levied on the lands and an abstract of such levy filed with the recorder of deeds; the defendant was duly served with process and appeared to the merits of the action in the Wright county circuit court and filed his answer, application and affidavit for a change of venue, and a change of venue was on his application awarded to the circuit court of Polk county; and upon a trial of said cause judgment was duly rendered against the defendant C. C. Winningham. Baisley v. Baisley, 113 Mo. 544. (2) The judgment of the Wright county circuit court, a court of general jurisdiction, setting aside the deed under which plaintiff claims, is conclusive in this collateral proceeding. Freeman v. Thompson, 53 Mo. 183; Rumfelt v. O'Brien, 57 Mo. 569; Baker v. Stonebraker, 34 Mo. 172; Adams v. Cowles, 95 Mo. 501. A judgment on order of publication can not be impeached collaterally. State ex rel. v. Ross, 118 Mo. 23; Freeman v. Thompson, 53 Mo. 183. A judgment which is not void as appears from the record is not subject to collateral attack. Myers v. McRay, 114 Mo. 377; State ex rel. v. Ross, 118 Mo. 23. The records and findings of a court of general jurisdiction import absolute verity. Rumfelt v. O'Brien, 57 Mo. 569; Dunham v. Wilfong, 69 Mo. 355. The court found that defendant had been duly notified as shown by recitals in the judgment. This finding of a court of general jurisdiction is not subject to collateral attack. Childers v. Schantz, 120 Mo. 305; Brawley v. Ranney, 67 Mo. 280. The order of publication is sufficient; it need not describe the land, This is only required in suits for partition. Goldsworthy v. Johnson, 87 Mo. 233; Allen v. Ray, 96 Mo. 542; Freeman v. Thompson, 53 Mo. 183. An order of publication made by the court on return of "not found" is valid as against collateral attack. Cruzen v. Stephens, 123 Mo. 337. Plaintiff's pretended purchase was during the pendency of the attachment suit. The filing of the petition, issuing and service of the writ of attachment and filing notice of the levy of same was notice to all the world. The filing is the delivering of the paper to the proper officer. Grubbs v. Cones, 57 Mo. 83; Baker v. Henry, 63 Mo. 517; Bensley v. Haberle, 20 Mo.App. 648.
Change of venue to Laclede county of an action of ejectment for the east half of the northwest quarter and the west half of the northeast quarter of section 8, township 30, range 13, situate in Wright county. Defendant entered a general denial and also set up matter authorizing equitable relief, which was prayed. The reply tendered the general issue.
The plaintiff's abstract of record discloses in substance this state of facts: That the plaintiff, John R. Winningham and C. C. Winningham are brothers. That in the year 1890, C. C. Winningham, after obtaining a loan of nine hundred dollars on a farm in Wright county from a loan company, transferred all his property to his son, Jas. O. Winningham, and went to the State of Oregon. While there he arranged with one F. McClain, his brother-in-law, to borrow one thousand dollars to aid him in the purchase of a farm, agreeing to secure the payment by mortgage on the farm to be purchased. That after he returned to Missouri he represented to Mr. McClain by letters that he had contracted for a farm in Wright county for twenty-four hundred dollars, that he did not want to go in debt but desired to pay cash; that he had fourteen hundred dollars which he would pay the seller the next day, and wanted to borrow one thousand dollars to complete the payment, and would give him a note secured by mortgage on the farm. That upon receipt of this letter McClain forwarded to C. C. Winningham a draft for one thousand dollars on the National Park Bank of New York, together with a note to be signed and secured by mortgage on the farm purchased, and to be returned to McClain. That on the twenty-eighth day of March, 1891, C. C. Winningham purchased of one J. W. Perry the land in controversy and paid for the same with the money borrowed from McClain, and caused the deed therefor to be made to, and in the name of his son, James O. Winningham and refused to execute and deliver to the said McClain a note and mortgage to secure the payment of the said sum of one thousand dollars as he had agreed to do. That upon the receipt of the draft for one thousand dollars from the said McClain, C. C. Winningham suddenly lost all interest in his "dear brother and sister," and from that time he stopped all correspondence with them; and did not so much as acknowledge the receipt of the money or draft. That in September, 1891, C. C. Winningham caused the arrest of his son, James O. Winningham, on a charge of embezzlement. That on or about the twenty-sixth day of September, 1891, the trouble between him and his son was adjusted, and the land conveyed to C. C. Winningham. That on the twentieth day of January, 1892, the said McClain commenced suit in the Wright county circuit court by attachment against C. C. Winningham to recover the said sum of one thousand dollars. The affidavit for the writ was based, in part, on the fraudulent contracting of the debt. That a writ of attachment was issued and was, by the sheriff on the twenty-first day of January, 1892, levied upon the lands in question and abstract of such levy filed with the recorder of deeds. That at the March term, 1892, of the Wright county circuit court, C. C. Winningham appeared and filed his answer thereto and also filed his application and affidavit for a change of venue; that a change of venue in said cause was granted to the circuit court of Polk county; that at the April term, 1892, of the Polk county circuit court, upon a trial, judgment was duly rendered in said cause against C. C....
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