Adams v. Cowles

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

8 S.W. 711

95 Mo. 501

Adams, Appellant, v. Cowles

Supreme Court of Missouri

June 4, 1888

Appeal from Bates Circuit Court. -- Hon. James B. Gantt, Judge.

Reversed and remanded.

Adams & Bowles for appellant.

(1) 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 Ins. Co., 86 Mo. 51; State ex rel. v. Donegan, 83 Mo. 374; Yates v. Johnson, 87 Mo. 213; Exendine v. Morris, 76 Mo. 416; State v Evans, 83 Mo. 319, and cas. cit.; Crews v. Mooney, 74 Mo. 26; Wellshear v. Kelly, 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. (2) The court erred in admitting, against the objections of the appellant, what was assumed to be the original writ of summons, petition, order of publication, and proof of publication in the case of Dwight Ferris v. William C. Glenn 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. 180; Dunham v. Wilfong, 69 Mo. 355; Crow v. Meyersieck, 88 Mo. 411; Robertson v. Winchester, 85 Tenn. 183; Stanly v. Crippin, 1 Head [Tenn.] 115, 116; Mitchell v. McKinny, 6 Heisk. [Tenn.] 83; Allen v. Gilliland, 6 B. J. Lea, 532, 533; Claybrook v. Wade, 7 Cold. [Tenn.] 556, 557.

A. Comingo for respondent.

(1) Jurisdiction consists of the right, as well as the power, to hear and determine a cause. These 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. Sheldon v. Newton, 3 Ohio St. 494; Grignon's Lessee v. Astor, 2 How. [U.S.] 319, 338; United States v. Arridondo, 6 Peters, 691, 709; Penoyer v. Neff, 95 U.S. 714-27; Gray v. Bowles, 74 Mo. 419-23. (2) In the case of Ferris v. 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. General Statutes, 1865, section 13, and Revised Statutes, 1879, section 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. (3) Even if it be held that the subject-matter of the action in Ferris v. Glenn was one over which the circuit court of Bates county might acquire jurisdiction of the defendants by constructive service (publication of notice), the court failed to acquire jurisdiction: (a) 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 this state; and (b) for the reason that the order of publication fails to state the object and general nature of the petition. In order to acquire jurisdiction by constructive service, a strict compliance with the statutory requirements is indispensable. If any of the material requirements or directions of the statute have been disregarded or omitted, the court acquires no jurisdiction by such service, and a judgment rendered thereon is void. 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. Michael v. Hicks, 19 Kan. 578; Bradley v. Jameson, 46 Iowa 68; Mayfield v. Bennett, 48 Iowa 194; Galpin v. Page, 18 Wall. 351, 369; Bobb v. Woodward, 42 Mo. 483-9; Drake v. Hale, 38 Mo. 346-8; Cloud v. Inhabitants, 86 Mo. 366, and citations; Schell v. Leland, 45 Mo. 293. (4) 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 appears 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. Inhabitants, 86 Mo. 366-9, and citations; Gilkeson v. Knight, 71 Mo. 403-6; Brown v. Woody, 64 Mo. 547-50; Bobb v. Woodward, 42 Mo. 482-9; Howard v. Thornton, 50 Mo. 291; Thompson v. Whitman, 18 Wall. 457-68; Ferguson v. Crawford, 70 N.Y. 253; Brady v. Jamison, 46 Iowa 68; Manly v. Headly, 10 Kan. 88, 93; Morrey v. Morrey, 27 Minn. 265.

OPINION

Black, J.

This was an action of ejectment for the undivided one-half of three hundred and twenty 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 by 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 Dunstan Adams in 1875, and Dunstan 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 v. Glenn and Glenn was filed in the circuit court of Bates county on the twelfth of 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 that an action has been commenced against them by petition and affidavit in the circuit court of Bates county, and state of Missouri, the object and general nature of which is to obtain a decree of title to the following described real estate, to-wit." The property is then described and defendants are notified to appear at the March term, 1871. At that term the plaintiff made proof of publication; and at the September term, 1871, the plaintiff took a decree by default. The record in that case was put in evidence in this one, but no affidavit of non-residence of the defendants appears among the files.

1. The statute (R. S., sec., 3494) allows the 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." If the deed to William C. Glenn was fraudulent, then it was void as to Ferris, and that fact could be shown in ejectment. But Ferris had the further right to have the fraudulent deed cancelled and in effect erased from the public records, and to do this whilst the evidence was at hand. The relief asked is the establishment of a right to real property, and comes within the statute allowing the service of notice by publication.

2. Nor is the notice published bad for a failure to state "briefly the object and general nature of the petition." These are the words of the statute, which requires the land to be described only in partition suits. Here the land is described, and the defendants are notified that the object of the suit is to obtain a decree of title to it. Accurately speaking the relief asked was the removal of a cloud from the plaintiff's title; but the notice given would be quite as well understood as if it had named the relief with more accuracy. The statute does not contemplate that the notice shall detail the facts as they are stated in the petition. Since the notice describes the land and states the object of the suit, it is sufficient, and especially so, when attacked collaterally.

3. The contention that the decree is void, for want of an affidavit or statement in the petition, that the defendants were non-residents, presents a different question. The statute provides that if the plaintiff, or other person for him, shall allege in his petition, or file an affidavit, stating that part or all of the defendants are non-residents of the state, the court, or clerk in vacation, shall make an order of publication. The circuit court is a court of general jurisdiction, a court...