Brown v. Howard

• Citation: 175 S.W. 54,264 Mo. 501
• Parties: HENRY P. P. BROWN, Appellant, v. WILLIAM A. HOWARD
• Decision Date: 30 March 1915
• Court: United States State Supreme Court of Missouri

175 S.W. 54

264 Mo. 501

HENRY P. P. BROWN, Appellant, v. WILLIAM A. HOWARD

Supreme Court of Missouri, Second Division

March 30, 1915

Appeal from Buchanan Circuit Court. -- Hon. W. K. Amick, Judge.

Affirmed.

C. W Meyer for appellant.

The attempted service by publication in the foreclosure proceedings of the St. Joseph Fire and Marine Insurance Company was a nullity as to this appellant, and gave the circuit court no jurisdiction over this appellant or over Josephine Clemmons and George W. Brown, because: (a) "The weight of authority supports the proposition that the publication in whole or in part of a summons or other legal notice in a newspaper published on Sunday is invalid." 37 Cyc. 587; McLaughlin v. Wheeler, 50 N.W. 834; Schwed v. Hartnitz, 47 P. 295; Sawyer v. Cargile, 72 Ga. 290; Dunmars v Denver, 65 P. 585; Scammon v. Chicago, 40 Ill 196; Ormsby v. Louisville, 79 Ky. 197; Sewall v. St. Paul, 20 Minn. 459; Shaw v. Williams, 87 Ind. 158. (b) The statutes of this State in force at that time prohibited work and labor, and also the serving of any legal process on Sunday. R. S. 1879, secs. 1578, 4039. (c) Under the fourth subdivision of Sec. 3126, R. S. 1879, the first day of the publication must be excluded. (d) The whole number of insertions, as shown by the proof of publication, was only twenty-four, including four Sunday insertion, and the first insertion was on Sunday.

William E. Stringfellow for respondent.

The publication complained of was sufficient. Howard v. Brown, 197 Mo. 36; Asphalt Pav. Co. v. Muchenberger, 105 Mo.App. 47; State v. Green, 66 Mo. 631; Bank v. Stumpf, 73 Mo. 311. Appellants complain that the publication was bad, because it began on Sunday and contained four Sunday insertions. R. S. 1879, sec. 3500.

ROY, C. Williams, C., concurs.

OPINION

ROY, C.

This is a proceeding to quiet title to the undivided seventh of the east twenty feet of lot one and the east twenty feet of the south sixteen feet of lot two in block thirty, in the city of St. Joseph. There was a finding and judgment for the defendant.

Plaintiff claims as the heir of George W. Brown who died in 1875.

On April 8, 1873, George W. Brown and wife executed a deed of trust on the land to secure a debt of $ 3000. By mistake it was so drawn as to convey only the undivided half of the land. On May 17, 1884, the holder of the debt secured by that deed of trust sued the heirs of Brown to correct the mistake in that deed of trust and to foreclose it. The petition averred that Henry P. Brown, defendant therein and plaintiff herein, was a non-resident of this State. An order of publication was made against him. It was returnable on the first day of the next term to be begun September 1, 1884. It was published in the St. Joseph Daily and Weekly Gazette in the consecutive issues of the paper from Sunday, June 29, to Saturday, July 26, 1884, inclusive, except that said paper was not issued on Monday of each week. At the foreclosure sale in that case Parmelia J. Brown became the purchaser on March 11, 1885, and the defendant herein has acquired her title.

The only objection made to the legality of the foreclosure of the deed of trust is that the order of publication was not legally published for four weeks. In Haywood v Russell, 44 Mo. 252, it was held that publication for four consecutive weeks in a weekly newspaper, the last insertion being four weeks before the return term, was sufficient. It was expressly held that it was not necessary that the first insertion should be eight weeks before the term. In Cruzen v. Stephens, 123 Mo. 337, 346, 27 S.W. 557, it was held that the decision on that point in Haywood v. Russell, had become a rule of property in the State and should stand. The Cruzen case involved the sufficiency of a sale under a judgment for taxes in which under the statute the publication is to be made as in other civil cases; so that there was no difference in the law applicable to those two cases. There followed Young v. Downey, 150 Mo. 317, 51 S.W. 751, involving the validity of the sale of real estate by an administrator to pay debts. The notice required in such case must, by the statute, be published four weeks before the beginning of the term at which the parties interested in the estate must, under the notice, appear. In that case it was held that the first consecutive insertion must be four weeks before the beginning of the term. Unfortunately the Young case held on page 324 that there was a wide difference...