Freeman v. Thompson

• Decision Date: 31 July 1873
• Citation: 53 Mo. 183
• Parties: CHAS. W. FREEMAN et al., Respondents, v. JOHN THOMPSON, et al., Appellants.
• Court: Missouri Supreme Court

53 Mo. 183

CHAS. W. FREEMAN et al., Respondents,

v.JOHN THOMPSON, et al., Appellants.

Supreme Court of Missouri.

July Term, 1873.

Appeal from Polk Circuit Court.

John S. Phelps, for Appellants.

I. The Legislature, by act of Jan. 26th, 1864, changed the time of holding courts in Polk Circuit, and made “all writs, process and proceedings returnable to the substituted terms.” The Legislature had the right so to enact. (Carson vs. Walker, 16 Mo., 68.)

II. In attachment causes, it is the levy of the attachment on property which gives the court jurisdiction. (Hardin vs. Lee, 51 Mo., 241; Drake Att., §§ 437, 448; Porter vs. Partee, 7 Humph., 168; Beach vs. Abbot, 6 Vern., 586; Williams vs. Stewart, 3 Wis., 773; Paine vs. Mooreland, 15 Ohio, 435; Cochran's Heirs vs. Loring, 17 Ohio, 409; Voorhies vs. Bank of U. S., 10 Pet., 449; Cooper vs. Reynolds, 10 Wal., 308; 1 Smith's L. Cas., §§ 1015, 1016.)

III. Proceedings of superior tribunals must be presumed to be correct unless manifestly erroneous, and cannot be con tradicted or convicted of error by extrinsic evidence. (1 Smith's L. Cas., § 995; Cooley's Court Lim., §§ 406, 407, 996, 997, 998; Wilcox vs. Kassich, 2 Mich., 165; McCarthy vs. Marsh, 1 Seld., 263; Watson vs. Jackson, 10 Mo., 329; Montgomery vs. Forley, 5 Mo., 233.)

IV. When facts necessary to give a superior court jurisdiction are set forth in the record, they cannot be contradicted in collateral proceedings. (1 Smith's L. Cas., §§ 996, 997; Newman case vs. City of Cincinnati, 18 Ohio, 323; Granger vs. Clark, 22 Me., 128; Cook vs. Darling, 18 Pick., 393.)

Wright & Johnson, for Respondents.

I. The order of publication in the case of McClurg vs. Freeman is wholly insufficient, and is no notice to the defendant; and the judgment being rendered without notice is void.

II. After the time of the holding of the Circuit Court had been changed, the notice was published to appear at the former time of holding court, and judgment by default was taken against defendant at a day prior to that he was notified to appear. Such notice was void.

III. In attachment cases the court must get jurisdiction of the person as well as the thing, by notice, or the proceeding is void. (Thatcher vs. Powell, 6 Wheat., 119; Bloom vs. Burdick, 1 Hill, 140, et seq.; Sherwood vs. Reade, 7 Hill, 433; McNair vs. Biddle, 8 Mo., 257, 264; Fithian vs. Monks, 43 Mo., 502.)

IV. The affidavit of the printer of the publication of the notice in attachment is not conclusive. It is a jurisdictional fact, and the record does not say that the necessary fact was found proven. (2 Phil. Ev., Hill and Edw. notes, p. 157, and cases above referred to.)

SHERWOOD, Judge, delivered the opinion of the court.

Action of ejectment brought in the Circuit Court by Freeman and others against Thompson and others for a lot of ground in the town of Bolivar. Petition and answer in usual form. The cause was tried by the court, a jury having been waived, and defendants admitted, that Thos. W. Freeman, deceased, was the owner of the lands described in the petition; that he died in October, 1865, and that plaintiffs were his only heirs at law. The plaintiffs thereupon rested. The defendants to maintain the issue on their part then read in evidence, without objection, a deed to defendants, Lunceford and Viles, dated September 26th, 1865, from John Caldwell, sheriff of Polk county, reciting the issuance of a writ of attachment on the 22nd day of October, 1865, by the clerk of the Circuit Court of said county, in favor of Jos. W. McClurg, and against Thomas W. Freeman, and the levy on the next day of the writ on the lot as the property of said Freeman, and as described in the petition, (except that the names of the town, county and State are omitted,) and recovery of judgment on the 31st day of March, 1865, by the said Jos. W. McClurg against Thomas W. Freeman for the sum of, etc., and the real estate attached, ordered to be sold; the issuance of a special fi. fa. on said judgment in favor of “said Jos. W. McClurg,” and against Thomas W. Freeman, and the sale under that special execution of the property, previously mentioned as having been attached, to Lunceford and Viles, two of the defendants, after due notice, etc., on the 25th day of September, 1865, and defendants rested.

The plaintiffs then, but for what purpose is not stated, read in evidence the records and files of the Polk Circuit Court in the case of Joseph W. McClurg vs. Thomas W. Freeman, showing the filing of the petition as well as the affidavit and bond for an attachment at the October term, 1863, of said court, the approval of said bond, the ordering of a writ of attachment to issue and publication to be made, notifying Thomas W. Freeman that an action had been commenced against him “founded on an account for the sum of $150;” that his property had been attached, etc., and requiring him to appear at the next March term, commencing on the 5th Monday after the 2nd Monday in March, 1864, and answer the action. The petition, affidavit, bond and writ were in usual form, and “Joseph W. McClurg” was the only party plaintiff mentioned therein. The writ of attachment is of the same date as that described in the sheriff's deed, and the property, (among other) mentioned in the return indorsed on the writ, corresponds in every particular with the property sued for.

Among the files in said cause, and attached thereto, was an affidavit, annexed to the printed order of publication in the said cause, which affidavit purported to be made by J. W. D. L. F. Mack, of the firm of Boren & Mack, publishers of the Springfield Journal, (the paper in which the publication was ordered to be made,) and stated that the publication was made in said paper for four weeks successively in Nos. 38, 39, 40, 41 of vol. two of that paper, and dated February 9, 16, 22 and 28, 1864. The notice of publication above referred to was in accordance with the order of court before mentioned. The interlocutory judgment in the cause showed, that court convened at Bolivar on the 28th day of March, 1864; that on 5th day of the term, “it appearing to the full satisfaction of the court that the defendant had been duly notified of the commencement of this action by publication in the Springfield Journal, a weekly newspaper published in Greene county, Missouri, for four weeks, the last insertion being at least for weeks before the first day of the present term of this court, and defendant having failed to plead, answer, or demur to plaintiff's petition, the same is taken as confessed, etc.”

The final judgment refers to the default taken against the defendant, and orders a special fi. fa. to issue for the sale of the property attached, and the special execution conforms to the sheriff's deed in the description of the property, and contains the same omission as the deed, as to name of town, county and State, but refers to the property as having been attached on the 23rd of October, 1863, (in which attachment return the property is correctly described,) and the return on the special fi. fa. shows the sale of the property to Viles and Lunceford as described in the sheriff's deed.

The defendants then proved by the clerk, that he could not find any writ of attachment or judgment in favor of Jos. W. McClurg in his office, nor any other judgment in favor of McClurg vs. Thomas W. Freeman, except the one read in evidence.

The plaintiffs then, against the objection of defendants, offered, and read in evidence, the deposition of James W. Boren, one of the publishers of the Springfield Journal, in which the affidavit of J. W. D. L. F. Mack, one of the publishers of said paper, is contradicted in several of its essential features as to the times when, and the numbers of the paper in which, the order of publication was published.

These objections of defendants were substantially as follows:

First. Because the deposition was offered to invalidate the records of the court in the case of McClurg vs. Freeman, and was therefore inadmississible.

Second. Because offered to disprove a fact which the records of the court in that case had recited as proven.

Third. Because parol evidence will not be allowed to contradict the facts of publication, when a recital of that fact by record entry, duly appears.

These objections being overruled, defendants excepted.

The foregoing was all the evidence. A number of declarations of law were then asked by plaintiffs, of which those gven and objected to by defendants, were to this effect:

That the deed offered in evidence by defendants from the sheriff, Caldwell, reciting a judgment in favor of Joseph W. McClurg against Thomas W. Freeman, and the records and proceedings in that case showing that that judgment was rendered on publication, unless such publication was made for four weeks successively, the last insertion at least four weeks before the commencement of the term at which the defendant was required to appear, the judgment and sale thereunder were of no validity.

That a publication fails to give the notice which the law requires in such cases, if it, in regard to the nature of plaintiff's demand, only states that the action is founded on “an account for the sum of $150.”

That the levy of a writ of attachment in this State upon the property of a defendant, without due notice, actual or constructive, will not authorize a judgment under which such property can be sold.

That the affidavit of the printer or publisher of a newspaper, though prima facie evidence of the fact of publication, yet it may be contradicted by other evidence.

That the affidavit filed in the case of McClurg vs. Freeman is bad, and could not have been published in a weekly newspaper, published regularly as required by law.

On these declarations being given, defendants excepted, and asked of the court to declare the law substantially as follows:

First. That the writ of attachment in the case of McClurg vs. Freeman, having issued after the due filing of the petition, affidavit and...