Adams v. Cowles

• Decision Date: 04 June 1888
• Citation: 95 Mo. 501,8 S.W. 711
• Parties: ADAMS v. COWLES.
• Court: Missouri Supreme Court

8 S.W. 711

95 Mo. 501

ADAMS v. COWLES.

Supreme Court of Missouri.

June 4, 1888.

1. FRAUDULENT CONVEYANCES — ACTIONS TO SET ASIDE — SERVICE OF NOTICE BY PUBLICATION — REV. ST. MO. § 3494.

An action by a judgment creditor to set aside a conveyance as fraudulent as to creditors is within Rev. St. Mo. § 3494, allowing service of notice by publication "in all actions, at law or in equity, which have for their immediate object the enforcement or establishment of any lawful right, etc., to or against real estate."

2. SAME — ACTIONS TO SET ASIDE — SERVICE OF NOTICE BY PUBLICATION — SUFFICIENCY.

A notice by publication in an action by a judgment creditor to set aside a conveyance as fraudulent as to creditors, which, after describing the land, notifies defendant that the object of the suit is to obtain a decree of title to it, is not bad for failure to state "briefly the object and general nature of the petition," as required by Rev. St. Mo. § 3494.

3. COURTS OF GENERAL JURISDICTION — PRESUMPTION IN FAVOR OF.

In an action to set aside a conveyance fraudulent as to creditors, notice was served on defendant by publication, under Rev. St. Mo. § 3494, providing that if plaintiff shall allege in his petition, or file an affidavit stating, that part or all the defendants are non-residents of the state, the court, or clerk in vacation, shall make an order of publication. The decree setting aside the conveyance recited that defendants had been duly notified by publication. The order of publication was good on its face, carrying the inference that an affidavit of non-residence had been filed. Held that, the court being one of general jurisdiction, whose judgments were presumptively regular, such decree was not void for want of jurisdiction, where defendants had acquiesced therein for some 15 years, though no affidavit of non-residence was to be found among the papers of the cause, and the petition contained no allegation of non-residence.

Appeal from circuit court, Bates county; JAMES B. GANTT, Judge.

Ejectment brought by Robert Adams against Manning S. Cowles. Judgment for defendant. Plaintiff appeals. The statute referred to in the opinion is Rev. St. Mo. § 3494.

Adams & Bowles, for appellant.

The circuit court of Bates county is a court of general jurisdiction, and its decree cannot be attacked collaterally by a stranger under any circumstances. The decree recited and found its jurisdiction over the parties to it and of the subject-matter of the action, and such finding is conclusive in this case. Dunham v. Wilfong, 69 Mo. 355; Kane v. McCown, 55 Mo. 200, 201; Hardin v. McCanse, 53 Mo. 255; Tutt v. Boyer, 51 Mo. 425; Johnson v. Beazley, 65 Mo. 262-265; Brown v. Insurance Co., 86 Mo. 51; State v. Donegan, 83 Mo. 374; Yates v. Johnson, 87 Mo. 213; Exendine v. Morris, 76 Mo. 416; State v. Evans, 83 Mo. 319, and cases cited; Crews v. Mooney, 74 Mo. 26; Wellshear v. Kelley, 69 Mo. 343; Brawley v. Ranney, 67 Mo. 280; Johnson v. Gage, 57 Mo. 160; Sloan v. Mitchell, 84 Mo. 546; Brown v. Walker, 85 Mo. 262; Yeoman v. Younger, 83 Mo. 428; Spaulding v. Baldwin, 31 Ind. 376; Evans v. Ashby, 22 Ind. 15; Hahn v. Kelly, 34 Cal. 391; Prince v. Griffin, 16 Iowa, 552; Grignon's Lessee v. Astor, 2 How. 319; Cox v. Thomas, 9 Grat. 323; Potter v. Bank, 28 N. Y. 656; Kelsey v. Wyley, 10 Ga. 371; Smith v. Pomeroy, 2 Dill. 414-420; Voorhees v. Bank, 10 Pet. 449; Harvey v. Tyler, 2 Wall. 343-345; Withers v. Patterson, 27 Tex. 499; Maxwell v. Stewart, 22 Wall. 77; Galpin v. Page, 18 Wall. 364. The court erred in admitting, against the objection of appellant, what was assumed to be the original writ of summons, petition, order of publication, and proof of publication in the case of Ferris v. William C. and William A. Glenn. The court, by its decree, having found "that the said defendants had been duly notified of the commencement of this action, and of the general nature and object of the same," that fact was like any other fact found by the court; and such papers were incompetent to establish any different fact. Kane v. McCown, 55 Mo. 181; Dunham v. Wilfong, 69 Mo. 355; Crow v. Meyersieck, 88 Mo. 411; Robertson v. Winchester, 1 Pickle, 183, 1 S. W. Rep. 781; Stanly v. Crippin, 1 Head, 115, 116; Mitchell v. McKinny, 6 Heisk. 83; Allen v. Gilliland, 6 Lea, 532, 533; Claybrook v. Wade, 7 Cold. 556, 557; Kilcrease v. Blythe, 6 Humph. 389, 390; Hopper v. Fisher, 2 Head, 253, 254; Walker v. Cottrell, 6 Baxt. 274; Foot v. Stevens, 17 Wend. 486, 487; Paine v. Moreland, 15 Ohio, 435; Nash v. Church, 10 Wis. 312; Gemmell v. Rice, 13 Minn. 400, (Gil. 371;) Hahn v. Kelly, 34 Cal. 391; Quivey v. Baker, 37 Cal. 465; McCauley v. Fulton, 44 Cal. 355; Reily v. Lancaster, 39 Cal. 354; Yaple v. Titus, 41 Pa. St. 202; Shawhan v. Loffer, 24 Iowa, 226, 227; Finneran v. Leonard, 7 Allen, 54.

A. Comingo, for respondent.

Jurisdiction consists of the right, as well as the power, to hear and determine a cause. There are conditions and requirements precedent and indispensable to the rightful exercise of the power. It can only be brought into exercise by a substantial compliance with the precedent conditions, or by the appearance of the parties without such compliance. Shelton v. Newton, 3 Ohio St. 494; Grignon's Lessee v. Astor, 2 How. 319, 338; U. S. v. Arredondo, 6 Pet. 691, 709; Pennoyer v. Neff, 95 U. S. 714, 727; Gray v. Bowles, 74 Mo. 419, 423. In the case of Ferris v. Glenn and Glenn the circuit court of Bates county did not acquire, and it could not by an order of publication obtain, jurisdiction over the defendants, for the purposes of that action. It was not an action for the recovery of the land, nor "to enforce a right, claim, or demand to or against it." It was a personal action for relief against an alleged fraud. Gen. St. 1865, p. 655, § 13; Rev. St. 1879, § 3493, — authorize service, by publication of notice, in actions brought to enforce rights, claims, or demands to or against land, but not for the purpose set out in the Ferris petition. Even if it be held that the subject-matter of the action in Ferris v. Glenn and Glenn was one over which the circuit court might acquire jurisdiction of the defendants by constructive service, (publication of notice,) the court failed to acquire jurisdiction — First, because the order of publication was not authorized by an averment in the petition, nor by an affidavit filed in the cause, showing that the defendants were non-residents of the state; second, because the order of publication fails to state the object and general nature of the petition. Had it been alleged in the petition, or stated in an affidavit filed therewith, that the defendants were non-residents, the order of publication would still have been fatally defective, in that it simply states that the object and general nature of the suit was "to obtain a decree of title," etc. Boyland v. Boyland, 18 Ill. 552; Brownfield v. Dyer, 7 Bush, 505; Fountaine v. Houston, 86 Ind. 205; Rankin v. Adams, 18 Wis. 292; Slocum v. Slocum, 17 Wis. 150; Shields v. Miller, 9 Kan. 390, 398; Mickel v. Hicks, 19 Kan. 578; Bradley v. Jamison, 46 Iowa, 68; Tunis v. Withrow, 10 Iowa, 305; Mayfield v. Bennett, 48 Iowa, 194; Galpin v. Page, 18 Wall. 351; Bobb v. Woodward, 42 Mo. 483; Drake v. Hale, 38 Mo. 346, 348; Cloud v. Pierce City, 86 Mo. 366, and citations; Schell v. Leland, 45 Mo. 293. Although a judgment or decree may be regular on its face, and may recite the existence of all the jurisdictional facts, yet if, from an examination of the record, it appear that such recitals, or any of them, are untrue, such judgment will be void. The whole record may be brought before the court, in every case, to test the validity of the judgment. Cloud v. Pierce City, 86 Mo. 366, 369, and citations; Gilkeson v. Knight, 71 Mo. 403, 406; Brown v. Woody, 64 Mo. 547, 550; Bobb v. Woodward, 42 Mo. 482, 489; Howard v. Thornton, 50 Mo. 291; Thompson v. Whitman, 18 Wall. 457, 468; Ferguson v. Crawford, 70 N. Y. 253; Tunis v. Withrow, 10 Iowa, 305, 307; Bradley v. Jamison 46 Iowa, 68; Shields v. Miller, 9 Kan. 390, 397; Manley v. Headley, 10 Kan. 88, 93; Boyland v. Boyland, 18 Ill. 551; Morey v. Morey, 27 Minn. 265, 6 N. W. Rep. 783.

BLACK, J.

This was an action of ejectment for the undivided one-half of 320 acres of land in Bates county. Both parties claim title through William A. Glenn, who conveyed the land to William C. Glenn in June, 1869, and he conveyed to Hartwell in 1881, from whom defendant claims sundry deeds. Judgments were recovered against William A. Glenn in August, 1869, under which the property was sold to Dwight Ferris. The deeds from the sheriff to him are dated March 10 and 11, 1870. Ferris conveyed to Dunston Adams in 1875, and Dunston Adams conveyed to plaintiff. Before Ferris conveyed to Adams, he procured a decree in a suit against William A. and William C. Glenn, setting aside the deed from William A. to William C. Glenn on the ground that it was made to hinder, delay, and defraud the creditors of William A. Glenn. The validity of that decree is the only real controversy in this case. The defendant claims that the decree is a nullity for want of jurisdiction over the defendants, and so the trial court held. The petition in the case of Ferris against Glenn and Glenn was filed in the circuit court of Bates county on the 12th October, 1870. A summons was issued for the defendants at the same time, but there is no return on it whatever. At the same time the clerk made an order of publication, the material portions of which are as follows: "Now, at this day comes Dwight Ferris, plaintiff in the above-entitled cause, before the undersigned, clerk of the circuit court of Bates county, in vacation, and files his petition, stating, among other things, that the above-named defendants, William A. Glenn and William C. Glenn, are non-residents of the state of Missouri. It is therefore ordered by the clerk aforesaid, in vacation, that publication be made, notifying them...