Brown v. Marshall

• Decision Date: 29 March 1912
• Parties: JOHN C. BROWN and J. W. CHILTON, Appellants, v. JOHN E. MARSHALL and MARTIN L. CLARDY
• Court: Missouri Supreme Court

145 S.W. 810

241 Mo. 707

JOHN C. BROWN and J. W. CHILTON, Appellants, v. JOHN E. MARSHALL and MARTIN L. CLARDY

Supreme Court of Missouri, First Division

March 29, 1912

Appeal from St. Louis City Circuit Court. -- Hon. C. C. Allen and Hon. Moses N. Sale, Judges.

Affirmed.

Wilson Cramer for appellants.

(1) The order of publication by which the probate court of St. Louis city sought to obtain jurisdiction of the heirs of Lewis V Bogy is void because it was not made returnable to any time when the law required said court to be held, or provided that it might be held. The Act of 1877 definitely fixed the time for holding the terms of said court upon the second Mondays in February, May, August and November; whereas the order of publication was made returnable to the second Monday in September, 1878. Sec. 34, art. 6, Constitution; Laws 1877, p 230, sec. 7; R. S. 1879, sec. 148; Holladay v Cooper, 3 Mo. 156, 203; Haws v. Clark, 37 Iowa 355; Wade on Law of Notice, sec. 1030. Such order of publication should have been made returnable on the first day of the next regular term of said court, as fixed by law, to-wit, the second Monday in August (or November), 1878. Sec. 34, art. 6, Constitution; Sec. 148, R. S. 1879. (2) The order of the probate court of St. Louis county changing the time for holding its terms of court did not authorize nor purport to authorize the probate court of the city of St. Louis to hold its terms of court at a time not authorized by law. Independent tribunals have no authority to manage the affairs of each other. Sec. 1, p. 1599, 2 R. S. 1855; Sec. 7, p. 230, Laws 1877. (3) The order of publication by which the probate court of St. Louis city sought to obtain jurisdiction of the heirs of Lewis V. Bogy was void also because not made at any regular, special or adjourned term of said court, and because it was made at a time when the said court was not, and could not be, in lawful session. Sec. 34, art. 6, Constitution; Laws 1877, sec. 7, p. 230. (4) The laws of 1877, creating the probate court of the city of St. Louis, did not take effect until July 29, 1877 (ninety days after the adjournment of the 29th General Assembly on April 30, 1877); therefore the order made by the probate court of St. Louis county on July 28, 1877, could not by any possibility have the effect to change the times as fixed by law for holding the terms of the probate court of St. Louis city, and did not authorize the probate court of St. Louis city to hold its terms of court at a date differing from that fixed by law. (5) In a proceeding to sell the lands of a decedent to pay his debts notice to his heirs is a jurisdictional prerequisite, and an order of sale of lands made without jurisdiction of the heirs is void, and as clearly "without due process of law" as are the judgments of any other courts of record rendered without jurisdiction of the defendants therein. Valle v. Fleming, 19 Mo. 454; Young v. Downey, 145 Mo. 258, 332; Hutchinson v. Shelly, 133 Mo. 412. And such judgment may be overthrown in collateral attack by introducing return or notice showing invalid service. Davis v. Montgomery, 205 Mo. 271; Feurt v. Caster, 174 Mo. 290; Stark v. Kirchgraber, 186 Mo. 646; Des Loge v. Tucker, 196 Mo. 601; Kelly v. Murdough, 184 Mo. 377. (6) Constructive service must always be had according to the method pointed out by statute, and is strictly construed. Wade on Law of Notice, sec. 1030; Young v. Downey, 150 Mo. 326; Harness v. Cravens, 126 Mo. 252; Lumber Co. v. McCabe, 220 Mo. 177; Williams v. Monroe, 125 Mo. 574; Ohlman v. Mill Co., 222 Mo. 62. (7) The probate court of the city of St. Louis, having no authority of law to hold a term of court on the second Monday of September, 1878, at which time the original order of sale was made under which respondents claim title, and having no authority to hold a term of court on the second Monday in September, 1881, at which time the renewed order of sale was made, the said orders of sale, made at said dates, were coram non judice and utterly void; and the administrator's deeds made thereunder are likewise absolute nullities. State ex rel. v. Ross, 118 Mo. 23; Williams v. Monroe, 125 Mo. 581; Doss v. Waggoner, 3 Tex. 576; Brumley v. State, 20 Ark. 78; Garlick v. Dunn, 42 Ala. 404; Wightman v. Karsner, 20 Ala. 446; Norwood v. Kenfield, 34 Cal. 329; Francis v. Wells, 4 Colo. 274; Austin v. Searing, 16 N.Y. 112; Kleber's Void Judicial Sales, sec. 142, p. 139; 8 Am. & Eng. Ency. Law, 24, 29; 11 Cyc. 728, 727; Robinson v. Ferguson, 78 Ill. 528. (8) The first sale of the lands in controversy by the administrator, having been disapproved by the probate court, the order to sell could have been renewed by the probate court at the same term at which the same was disapproved while the heirs were presumed by law to be present in court, but as this was not done, and as the heirs of Bogy did not appear in court and did not ratify the proceedings in any manner, the renewed order of sale, upon which respondents' claim is based, made nearly a year after the sale was disapproved, was void for want of jurisdiction. Sec. 168, R. S. 1879; George v. Middough, 62 Mo. 549; State v. Walbridge, 119 Mo. 394; Koch v. Hawkins, 40 Mo.App. 680; Ault v. Bradley, 191 Mo. 729.

N. A. Mozley and Charles W. Bates for respondents.

(1) The separation of the city and county of St. Louis in 1876 -- the division of the old county of St. Louis -- did not affect the organization or jurisdiction or location of the probate court of the county of St. Louis established in St. Louis. Constitution, art. 9, secs. 20, 23, 24; Constitution, art. 6, sec. 34; Constitution, art. 14, sec. 5; Schedule, sec. 3; R. S. 1855, p. 1599, being sec. 1, Act of Dec. 2, 1855; Scheme, secs. 1, 3, 5, 10; Henderson v. Koenig, 168 Mo. 356; Ex parte Buckner, 9 Mo.App. 540; State ex rel. v. Finn, 4 Mo.App. 347; State ex rel. v. Mason, 4 Mo.App. 377; State ex rel. v. Finn, 8 Mo.App. 341; State ex rel. v. Walsh, 69 Mo. 408; State ex rel. v. Laughlin, 75 Mo. 147; Eicherlmann v. Weiss, 7 Mo.App. 87; Cunningham v. St. Louis, 96 Mo. 53; Babcock v. Hahn, 175 Mo. 136; State ex rel. v. Railroad, 195 Mo. 228. (2) The probate court of the old county of St. Louis, located in the city of St. Louis since 1841, was not abolished by the act of 1877, nor was it moved. That act simply created a new court for the new county of St. Louis, as distinguished from the city of St. Louis. Constitution, art. 6, sec. 34; Constitution, art. 9, sec. 24; Constitution, art. 14, sec. 5; Schedule, sec. 3; Laws 1877, p. 229, sec. 18; State ex rel. v. Gammon, 73 Mo. 421; Babcock v. Hahn, 175 Mo. 136; State ex rel. v. Laughlin, 75 Mo. 147; Henderson v. Koenig, 168 Mo. 356; Eicherlmann v. Weiss, 7 Mo.App. 87; State ex rel. v. Finn, 8 Mo.App. 341; State ex rel. v. Walsh, 69 Mo. 408; Cunningham v. St. Louis, 96 Mo. 53. (3) The terms of the probate court, fixed by order of the court, are legal terms of court. The probate court had the power, under the statutes, to change the time for the terms of court from the dates fixed by the statute to those fixed by the court to meet the convenience of the court and the public. Rhodes v. Bell, 230 Mo. 138; Overton v. Johnson, 17 Mo. 451. (4) The provisions of the act of 1877, relating to terms of probate courts, did not repeal the same provisions of the statutes as they then existed, but were continuations of such provisions and did not invalidate the action of the court in fixing its terms. State ex rel. v. Mason, 153 Mo. 23; State ex rel. v. Court, 53 Mo. 128; Smith v. People, 47 N.Y. 330. (5) The probate court having acquired jurisdiction to make the original order of sale, the renewal order of sale without further notice and at any subsequent term was valid. Rhodes v. Bell, 230 Mo. 138; Rogers v. Johnson, 125 Mo. 214; Sims v. Gray, 66 Mo. 616; Stowe v. Bank, 123 Mo. 672; Greffett v. Williams, 114 Mo. 181. (6) Judge Woerner was elected at the general election in 1876 under the act of 1855 for a term of six years and was, by the constitutional provisions and by the scheme of separation of the city and county of St. Louis and by the act of 1877, expressly continued in the office of judge of the probate court, to which he was then elected to the expiration of his six-year term. Constitution, art. 9, sec. 24; Constitution, art. 14, sec. 5; Act of 1877, sec. 18; State ex rel. v. Gammon, 73 Mo. 421. (7) The acts of the probate court are entitled to the same presumptions of validity as those of any other court of record or of any court of general jurisdiction. Covington v. Chamblin, 156 Mo. 574; Camden v. Plain, 91 Mo. 117; Bray v. Adams, 114 Mo. 486; Wolf v. Robinson, 20 Mo. 459; Nolan v. Barrett, 122 Mo. 181; Rugle v. Webster, 55 Mo. 246; Hughes v. McDavitt, 102 Mo. 77; Price v. Real Estate Ass'n, 101 Mo. 114; Woerner on Am. Law of Administration, secs. 144, 145; Rogers v. Johnson, 125 Mo. 215.

Wilson Cramer for appellant in reply.

(1) The city of St. Louis was a new political subdivision of the State carved out of St. Louis county, created by the adoption of the scheme and charter in 1876, and the residue of the county remained a legal county of the State under the name of the county of St. Louis. Sec. 23, art. 9, Constitution of 1875; State ex rel. v. Walsh, 69 Mo. 408; State ex rel. v. Mason, 4 Mo.App. 377; People v Morrell, 21 Wend. (N.Y.) 563; State ex rel. v. Walker, 17 Ohio 135; State ex rel. v. Choate, 11 Ohio 511; Mauck v. Lock, 70 Iowa 266; School Dist. v. Wolf, 20 L.R.A. 358. (2) The probate court of St. Louis city was not a continuation of the probate court of St. Louis county, but was a new court created by the act of 1877. State ex rel. v. Walsh, 69 Mo. 408; People v. Morrell, 21 Wend. (N.Y.) 563; Sec. 23, art. 9, Constitution of 1875; Sec. 1, Laws 1877, p. 229; County...