Burnett v. McCluey

Decision Date06 June 1887
PartiesBurnett v. McCluey, Appellant
CourtMissouri Supreme Court

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

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.

"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 levied upon the attached lands, and none other, and sold the same to defendant. The deed made by the sheriff to the defendant is regular on its face.

The court, at the request of the plaintiff, declared the law to be that the sheriff's deed was void because made under proceedings in attachment, without any affidavit therefor. This instruction presents the controlling question in the case. The question of the validity of this deed has been before the court on two former occasions; first in Bray v. McClury, 55 Mo. 128; and next in Burnett v. McCluey, 78 Mo. 676, which was the first appeal in the present case. On both occasions the deed was held to be invalid, but always by a divided court. From the opinion of Judge Adams, in the first case, it will be seen that he regarded an affidavit for an attachment as essential, as jurisdictional, without which the judgment, on publication of notice only, would be void, and that there was no affidavit for attachment in the case, and that the affidavit filed was simply one for an order of publication. Had he regarded the affidavit as one filed for an attachment also, it is probable he would have reached a different conclusion, for he says: "As there was no affidavit at all filed for the purpose of suing out the attachment, it is unnecessary to discuss the question whether a defective affidavit could be amended so as to sustain the attachment. In my judgment that could be done." The other judges, who reached the conclusion that the deed was void, did so evidently, not upon the ground that there was no affidavit filed for the purpose of suing out an attachment, but because the affidavit filed was not in substantial compliance with the statute.

The first question is, was there any affidavit at all filed for the purpose of suing out the writ? We place no reliance upon what appears to be a verification of the petition. By the statute, the affidavit for an attachment (1 R. S., 1855, p 240, sec. 6) should state that the plaintiff has a just demand against the defendant, the amount due after allowing all credits and set-offs, and that the affiant has good reason to believe and does believe in the existence of one or more of the causes which would entitle the plaintiff to an attachment. There are thirteen of these causes, one of which is non-residence of the defendant. An affidavit of non-residence will also entitle the plaintiff to an order of publication. Sec. 23. The law does not require these affidavits to be labeled for the one or the other purpose. One affidavit stating all the facts necessary to procure a writ of attachment and an order of publication will be sufficient for both purposes. Now the record shows that the clerk did make the order of publication and issue the writ of attachment on this affidavit, and it cannot be said there was no affidavit at all filed for the purpose of suing out...

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