Bell v. Brinkmann

• Decision Date: 18 June 1894
• Parties: Bell v. Brinkmann, Appellant
• Court: Missouri Supreme Court

27 S.W. 374

123 Mo. 270

Bell v. Brinkmann, Appellant

Supreme Court of Missouri

June 18, 1894

Appeal from Franklin Circuit Court. -- Hon. Rudolph Hirzel, Judge.

Affirmed.

J. C Kiskaddon for appellant.

(1) The partition deed prima facie conveyed the title to the property therein described; therefore the court erred in excluding it when first offered by defendant, and in compelling the defendant in the first instance to produce the record on which it was based. R. S. 1889, secs. 4954, 7166, 7169; Howard v. Thornton, 50 Mo. 291. (2) The recitals of the appearance of Frank and Marion Bell by attorney, in the decree of partition and order approving the sale, are conclusive in this collateral proceeding, being uncontradicted by any other part of the record. R. S. 1889 sec. 2013; Adams v. Cowles, 95 Mo. 501; Crow v Meyersieck, 88 Mo. 415; Cloud v. Pierce City, 86 Mo. 357; Rumfelt v. O'Brien, 57 Mo. 569; Brown v. Woody, 64 Mo. 547; Howard v. Thornton, 50 Mo. 291; Milner v. Shipley, 94 Mo. 106; Higgins v. Beckwith, 102 Mo. 456; State v. Dugan, 110 Mo. 138; 1 Freeman on Judg. [4 Ed.], secs. 131, 132, 135; Hope v. Blair, 105 Mo. 85; Johnson v. Beasley, 65 Mo. 250. (3) An appearance by attorney is good and conclusive in a collateral proceeding. McNair v. Biddle, 8 Mo. 257; Baker v. Stonebraker, 34 Mo. 172; Warren v. Lusk, 16 Mo. 102, 112; Valle v. Picton, 91 Mo. 207; Crow v. Meyersieck, 88 Mo. 415; Cloud v. Pierce City, 86 Mo. 357. (4) And the partition deed, after the record was offered, having been again offered, it was error to exclude it. (5) If the appearance of an attorney is unauthorized, the proper way to remedy the wrong is by a direct proceeding for that purpose, in which the equities of all the parties interested, and who have become interested, may be taken into consideration and settled. Harshey v. Blackman, 20 Iowa 161.

Thos. B. Crews for respondent.

(1) Defendant offered in evidence the sheriff's deed in partition, to which plaintiff objected, on the ground that the proceedings on which it was based were void on their face. The objection was sustained. The record had not then been formerly offered. Instead of standing upon this deed, defendant, anticipating plaintiff's evidence in rebuttal, voluntarily put in evidence the record referred to, after which he again offered the sheriff's deed, and upon plaintiff's contention that the proceedings in evidence -- the record, upon which the deed was based -- were void upon their face, and the deed a nullity, the deed was excluded by the court. If the first ruling was error, it was harmless. The second ruling was made with the whole record before the court, and it is immaterial whether introduced by plaintiff or defendant. (2) If the whole record taken together in the partition proceeding does not show that the court had jurisdiction of plaintiff then the judgment and all proceedings therein were and are void as to him. Simple extracts from the record are not admissible to show service or appearance any more than to show the want of it. The recitals in the judgment are contradicted by the record. Higgins v. Beckwith, 102 Mo. 456; Milner v. Shipley, 94 Mo. 109; Cloud v. Inhabitants, 86 Mo. 357; Lamey v. Garbee, 105 Mo. 355.

Brace J. Black, C. J., and Sherwood and Burgess, JJ., concurring; Barclay, Gantt and Macfarlane, JJ., dissenting.

OPINION

In Banc

Brace, J.

This is an action in ejectment for an undivided interest in certain real estate, described in the petition, situate in Franklin county. The answer was a general denial. The case was tried by the court without a jury. The judgment was for the plaintiff, and defendant appeals.

The material facts are not disputed. In the year 1851, John K. Bell died, seized of the lands described in the petition, leaving ten children surviving him, of whom the plaintiff was one. In the year 1861, the plaintiff and one of his brothers left Missouri and went west, and thereafter, until the trial of this cause, remained absent from the state.

On the twenty-second of August, 1881, a suit for partition of said lands was instituted in the Franklin circuit court, returnable to the next ensuing November term thereof, by two of the children against the others, in which the plaintiff was named as a defendant in the petition, and his residence stated to be unknown. Some of the defendants in that suit were served by summons and some by publication, but it is conceded that the plaintiff was not legally served in either mode. At the return term, the following entry appears upon the record in said suit:

"Chas. Bell et al.

v.

"John T. Bell et al.

Partition.

"Leave to answer on or before sixty days of the next term, and cause continued."

It was admitted that the only answer ever filed in said suit was by two of the defendants, who had been served by summons (Sarah Childers and John T. Bell). At a subsequent term one S. M. Jones was substituted as a party plaintiff in lieu of Charles Bell, and at the May term, 1882, judgment of partition was rendered, and order of sale as follows:

"S. M. Jones, Minerva Parker and her husband, Charles E. Parker, v. -- (Partition)

"John T. Bell, Lilburn Bell, Frank Bell, Lydia C. Francis, Susan Perkins, Martin V. Perkins, Almeda P. Kennada, Jerome Kennada, Sarah Childers and Marion Bell.

"Now, at this day come the said parties, by their respective attorneys, and this cause is now submitted to the court upon the pleadings and the evidence adduced, and the court, being now fully advised of and concerning the premises, doth order, adjudge and decree that partition be had of the lands in plaintiffs' petition described as follows, to wit," etc. Then follows a description of the lands, the finding of the interests of the parties, that the lands can not be divided in kind, and an order of sale in the usual form.

A sale was made in pursuance of the order and reported to the court at a subsequent term, the approval of the report appearing upon the record with the same caption, followed by the recital, "Now, at this day, come the said parties by their respective attorneys," as before.

Afterwards a deed was executed by the sheriff in proper form, duly acknowledged, proved and recorded, reciting the judgment, order of sale, sale thereunder pursuant to advertisements, etc., conveying the premises to S. M. Jones, the purchaser at such sale, under whom the defendant claims.

The defendant, after introducing the record aforesaid in evidence, offered said sheriff's deed, which was rejected by the court, and this is the error complained of.

The statute provides that such a deed "shall be a bar against all persons interested in such premises who shall have been parties to the proceedings, and against all persons claiming from such parties." 2 R. S. 1889, sec. 7169.

Persons interested in real estate may be made parties to a proceeding for partition thereof, either by proper service of a writ of summons, an order of publication or by voluntary appearance to a petition filed for that purpose. R. S. 1889, secs. 2013-2022.

The record upon which the defendant relies to sustain the sheriff's deed in this cause failed to show that the court acquired jurisdiction of the plaintiff or his interest in the premises, either by summons or publication of notice, and the only evidence furnished thereby of a voluntary appearance by the plaintiff is contained in the recitals quoted. The first contains no evidence whatever of the plaintiff's appearance, being, as it appears upon the record, a mere leave to plead given by the court ex mero motu. The third is of no significance, being the usual formal order of approval following the judgment, where no objections are made to the sale or the proceedings under the judgment. The whole force of defendant's contention is determined by the weight to be given to the general recital. "Now, at this day, come the said parties, by their respective attorneys," following the title of the cause in which the plaintiff's name appears among the other defendants in the record of the judgment of partition.

The defendant contends that this general recital is conclusive evidence of plaintiff's appearance in that action, and can not be gainsaid in this collateral proceeding, because it is not contradicted elsewhere by the record. But can it be said, when we look at the whole record, that this recital is not contradicted, and that it appears satisfactorily therefrom that the court acquired jurisdiction? There was no effort made to acquire jurisdiction by summons, for the sufficient reason stated in the petition of the brother and sister that his residence was unknown. There was an effort made to acquire jurisdiction by order of publication, the proof of which was filed at the same term that the court, of its own motion, gave leave to answer in vacation, but upon the face of this proof, filed in the cause, the failure to acquire jurisdiction of the plaintiff, by that mode, was patent upon the face of the record, and not a hint is given by any entry of any kind thereafter made that this special condition of the case, with respect to the plaintiff, over whom the court had then failed to acquire jurisdiction by any process whatever, was changed in any particular; but it appeared upon the face of the record that the circuit court had not acquired jurisdiction over the plaintiff or his interest in this land up to the time that this general recital appears in the judgment of partition, which the defendant claims is conclusive and uncontradicted.

If this contention be maintained, then lands in Missouri are held by a very frail and uncertain tenure in case of partition; for it is a fact well known to the profession, that it is too generally the custom of the clerks, when these entries are made...