Burnham v. Clark

• Citation: 232 Mo. 657,135 S.W. 441
• Parties: BURNHAM et al. v. CLARK.
• Decision Date: 28 February 1911
• Court: United States State Supreme Court of Missouri

135 S.W. 441

232 Mo. 657

BURNHAM et al. v. CLARK.

Supreme Court of Missouri, Division No. 1.

February 28, 1911.

JUDGMENT (§ 138) — DEFAULT — OPENING— STATUTORY PROVISIONS.

A default judgment in a suit under Rev. St. 1899, § 4268, providing that one claiming land, the equitable title to which emanated from the state more than 10 years ago, where neither the claimant nor any of his privies in estate has been in possession for 30 consecutive years, nor paid taxes thereon during that time, must bring his action within one year or be barred, begun by publication, may be opened on defendant's petition, under Rev. St. 1899, §§ 777, 779, providing that, when an interlocutory judgment shall be made and a final judgment entered thereon against any defendant not summoned as required by that chapter, it may be set aside by the defendant's appearance and a petition showing good cause within three years, since section 4268, though a statute of repose, does not cut off defendant's right to have a judgment rendered thereunder reviewed.

Appeal from Circuit Court, Dent County; L. B. Woodside, Judge.

Action by C. B. Burnham and others against Lewis B. Clark. From a judgment for defendant, after vacating a default judgment for plaintiffs, plaintiffs appeal. Affirmed.

In this case we presumably have an agreed statement of facts in lieu of a bill of exceptions. We say presumably, because the judgment on file in this court is entitled C. B. Burnham et al., Plaintiffs, v. Lewis B. Clark, Defendant, whilst the agreed statement of facts and points in dispute is entitled Lewis E. Clark, Plaintiff, v. C. B. Burnham et al., Defendants. By this judgment on file here Clark is decreed to be the owner in fee of certain lands in Dent county, Mo. The decree further adjudges: "That the plaintiff's take nothing by this suit, and they are forever barred and precluded forever from setting up any right, title, or interest in and to said real estate, and that the defendant have execution for costs and the same is awarded."

This trouble as to title of the suit is cleared up by the facts agreed upon in the case. Such facts thus run: February 13, 1904, C. B. Burnham et al. brought suit in the circuit court of Dent county, Mo., against Lewis E. Clark, then and at all times a nonresident of Missouri. Such suit was under section 4268, Rev. Stats. 1899; section 1884, Rev. Stats. 1909. No personal service was had upon Clark, but publication was taken out and made in the usual form. Judgment went against him by default. Clark made no appearance to such suit until after judgment was entered for the plaintiffs therein. Judgment was entered against Clark at the April term, 1904, of said court quieting the title to the lands in dispute in Burnham et al., and further decreeing that Clark had no right, title, or interest therein. October 7, 1905, Clark for the first time appeared and filed a petition for review of such judgment. All parties were duly notified, the issues threshed out with the result that the judgment of April, 1904, was set aside, and the judgment now pending here was entered.

The statute under which the suit was instituted reads: "Whenever any real estate, the equitable title to which shall have emanated from the government more than ten years, shall thereafter, on any date, be in the lawful possession of any person, and which shall or might be claimed by another, and which shall not at such date have been in possession of the said person claiming or who might claim the same, or of any one under whom he claims or might claim, for thirty consecutive years, and on which neither the said person claiming or who might claim the same nor those under whom he claims or might claim has paid any taxes for all that period of time, the said person claiming or who might claim such real estate shall, within one year from said date, bring his action to recover the same, and in default thereof he shall be forever barred, and his right and title shall, ipso facto, vest in such possessor: Provided, however, that in all cases such action may be brought at any time within one year from the date at which this article takes effect and goes into force." Clark in his petition for review proceeded under sections 777, 778, 779, Rev. Stats. 1899; sections 2101, 2102, 2103, Rev. Stats. 1909.

These sections read:

"Sec. 777. When such interlocutory judgment shall be made and final judgment entered thereon against any defendant who shall not have been summoned as required by this chapter, or who shall not have appeared to the suit, or has been made a party as the representative of one who shall have been summoned or appeared, such final judgment may be set aside, if the defendant shall, within the time hereinafter limited, appear, and by petition for review, show good cause for setting aside such judgment.

"Sec. 778. If the plaintiff shall, at any time after such final judgment, serve the defendant, within any of the United States or the territories thereof, with notice of the suit and a copy of the judgment thereon, and such defendant shall not, within one year after such service, bring his petition for review, the court, on proof of the service of such notice, shall make an order that the judgment stand absolute.

"Sec. 779. If such petition for review be not filed within three years after such final judgment is rendered, the same shall stand absolute, whether notice thereof be given or not."

It is not claimed that any steps were taken under section 778, supra, so that the case turns upon the construction to be given to sections 4268, 777, and 779. In the present case the sufficiency of the proceedings is not questioned except in one particular. Counsel for appellants state their question thus: "There is but one question in this case on which the appellants stand for a reversal of this judgment. Appellants contend that the order of publication which was published against the respondent, Lewis B. Clark, in the former suit in favor of the appellants herein was, under said section 4268, Revised Statutes 1899, a complete and valid service and carried with it such force as a personal service would have done, and judgment rendered thereunder cannot be reviewed, because this statute is an absolute repose in the...