Burnett v. McCluey

• Court: United States State Supreme Court of Missouri
• Writing for the Court: Black, J.
• Citation: 4 S.W. 694,92 Mo. 230
• Parties: Burnett v. McCluey, Appellant
• Decision Date: 06 June 1887

4 S.W. 694

92 Mo. 230

Burnett
v.
McCluey, Appellant

Supreme Court of Missouri

June 6, 1887

Appeal from Dade Circuit Court. -- Hon. Chas. G. Burton, Judge.

Reversed.

N. Gibbs for appellant.

(1) The judgment of the Dade circuit court, in the cause of the Merchants' Bank of St. Louis v. John N. Ferguson and Marshall G. Stephens, was not void, and the sheriff's deed thereunder should have been admitted in evidence, and appellant's first declaration of law should have been given, and respondent's seventh should have been refused. Kane v. McKoun, 55 Mo. 181-200; Freeman v. Thompson, 53 Mo. 183; Gilkeson v. Knight, 71 Mo. 403-405; Cooper v. Reynolds, 10 Wall. 308-316-17-19. Also all the authorities cited under the second point in this brief. (2) The only objection urged against the judgment in said attachment is that the affidavit was insufficient. As the affidavit is by statute made amendable, the judgment could, at the worst, only be voidable, and being voidable only, the sheriff's sale thereunder passed the title. Appellant's first declaration should have been given, and the seventh for respondent should not have been given. Musgrove v. Mott, 90 Mo. 107; Sloan v. Mitchell, 84 Mo. 546-548; Hardin v. Lee, 51 Mo. 241-244-245; Massey v. Scott, 49 Mo. 278-280-281; Henderson v. Drace, 30 Mo. 358-364; Rosenheim v. Hartsock, 90 Mo. 307; Moore v. Mauck, 79 Ill. 391-393; Kruse v. Wilson, 79 Ill. 233-237; Rogers v. Cooper, 33 Ark. 406; Matthews v. Densmore, 109 U.S. 216. (3) The two affidavits in the case of the Merchants' Bank, etc., v. Ferguson et al., taken together, are a substantial compliance with our attachment law. 1 R. S., 1855, pp. 238 and 240, secs. 1 and 6. (4) The former majority decision of this court in this case, Burnett v. McCluey, 78 Mo. 676-689, and the majority decision in Bray v. McCluey, 55 Mo. 128, holding the judgment in the Merchants' Bank, etc., v. Ferguson et al. void, is in direct conflict with other decisions of this court, and should be overruled, and judgment rendered for the appellant, in this court.

Hoskinson & McClure for respondent.

The judgment in the case of Merchants' Bank of St. Louis v. John N. Ferguson and Marshall G. Stephens was void, and the sheriff's deed conveyed no title, (1) because no affidavit for attachment was made. Bray v. McCluey, 55 Mo. 128; Hargadine v. Van Horn, 72 Mo. 370; Burnett v. McCluey, 78 Mo. 676. (2) A general judgment on order of publication and no appearance of the defendants is void. Abbott v. Sheppard, 44 Mo. 273; Smith v. McCutchen, 38 Mo. 415.

OPINION [4 S.W. 695]

[92 Mo. 232] Black, J.

This was an action of ejectment for the undivided half of three hundred and twenty acres of land in Dade county. Both parties claim title from John N. Ferguson, who died in 1868. The plaintiff put in evidence a deed from the widow and heirs of Ferguson, dated January 13, 1875.

The defendant put in evidence a sheriff's deed, dated April 28, 1866, upon which he relies for title.

To defeat the sheriff's deed the plaintiff read in evidence the petition, judgment, execution, and proceedings upon which it was based; and from which it appears that, on the fifth of August, 1865, the Merchants National Bank commenced a suit in the Dade circuit court against John N. Ferguson and Marshall G. Stephens. The petition declares upon a bill of exchange which is fully set forth. Appended to the petition are the following affidavits:

"Joseph Estes, attorney for the plaintiff, makes oath and says the matter and statements contained in the foregoing petition he believes to be true.

"Joseph Estes.

"State of Missouri,

"County of Dade.

"This affiant states that the within named defendants, Marshall G. Stephens and John N. Ferguson, are non-residents of the state of Missouri to the best of his knowledge and belief.

"Joseph Estes,

"Attorney for Plaintiff.

[92 Mo. 233] "Subscribed and sworn to before me this fifth day of August, A. D., 1865.

"B. Appleby, Clerk,

"By Nelson McDowell, Deputy."

Upon these papers the clerk issued a writ of attachment, by virtue of which the sheriff seized the lands in question. The clerk also made an order of publication notifying the defendants among other things that their property had been attached. The defendants made no appearance to the suit, and two judgments by default were rendered, both on the third of November, 1865. The first is a judgment for the amount found to be due to be levied of the attached property which is described, and the other is simply a general judgment. The docket shows that the suit was entitled civil action by attachment. General execution was issued on the twenty-sixth of January, 1866, under which the sheriff...