Carpenter v. Roth

• Decision Date: 16 January 1906
• Citation: 91 S.W. 540,192 Mo. 658
• Parties: CARPENTER, Appellant, v. EVA ROTH et al
• Court: Missouri Supreme Court

91 S.W. 540

192 Mo. 658

CARPENTER, Appellant, v. EVA ROTH et al

Supreme Court of Missouri, Division One

January 16, 1906

Appeal from Buchanan Circuit Court. -- Hon. H. M. Ramey, Judge.

Affirmed.

William E. Sherwood for appellant.

(1) The jurisdiction of the justice of the subject-matter was special, and the law requires that the record made by that court in entering up a judgment in rem to disclose that jurisdiction; and will not permit property to be sacrificed to any such failure. (2) The failure of such justice's record to disclose jurisdiction of the subject-matter can not be supplied by parol or by spoliation, or by false representation of the transcript in proceedings subsequent to the justice's transcript. (3) Where unincumbered property worth $ 1,500 is sold for $ 12.50 on such transcript judgment, and plaintiff offers to have an accounting of indebtedness and asks to be allowed to pay the same, it will be presumed the property was sacrificed to the error in the justice docket to show jurisdiction of the subject-matter and it was error in the trial court to refuse to hear that evidence. In support of these points we submit the following authorities and urge that the case of Corrigan v Morris, 43 Mo.App. 456, is identical with the case under consideration and is decisive of the controversy Corrigan v. Morris, 43 Mo.App. 456; State ex rel. v. County Ct., 66 Mo.App. 96; Bank v. Doak, 75 Mo.App. 336. (4) This action before the justice of the peace was a special statutory proceeding to enforce special bills. Justices of the peace generally had no jurisdiction to enforce a special taxbill. Jurisdiction in such actions was only given to such justices of the peace as were justices "in said city" of St. Joseph in case the bill did not exceed $ 300. Sec. 5664, R. S. 1899. Not only must the justice be a justice in said city, but the proceeding being in invitum, purely statutory, not in accordance with the comman law, and against common right, and the court being one of special and limited jurisdiction, every essential prerequisite of the statute conferring the authority must appear on the face of the proceedings. Cunningham v. Railroad, 61 Mo. 36; Haggard v. Railroad, 63 Mo. 303; Rousey v. Railroad, 51 Mo.App. 658; State ex rel. v. St. Louis, 67 Mo. 117; Corrigan v. Moores, 43 Mo.App. 461; State ex rel. v. Hager, 91 Mo. 455; State ex rel. v. Railroad, 149 Mo. 644; State ex rel. v. Snyder, 139 Mo. 549; Leonard v. Sparks, 63 Mo.App. 594; Belske v. Lamp, 91 Mo.App. 479. A valid judgment is an indispensable prerequisite of a valid sale. Burnham v. Hitt, 143 Mo. 414; Harness v. Cravens, 126 Mo. 233. (5) There was no division of the lots as required by section 3185. Our law carefully guards against a sacrifice of the debtor's property. Kelly v. Hurl, 61 Mo. 468; Gordon v. O'Neil, 96 Mo. 356; Montgomery v. Miller, 131 Mo. 529; Lewis v. Whitten, 112 Mo. 328; Holworth case, 113 Mo. 520. (6) Defendants were not innocent purchasers. With full knowledge that the judgment was void on its face, they sold the lots and bought them in. Mann v. Best, 62 Mo. 491; Lennox v. Clarke, 52 Mo. 117; Hewitt v. Weatherby, 57 Mo. 276; Harness v. Cravens, 126 Mo. 233. (7) Where any unfairness or irregularity exists, and inadequacy of price is shown, the sale will be set aside. Durfee v. Moran, 57 Mo. 374; Lankford v. Jackson, 21 Ala. 650; Woods v. Dewey, 56 Kas. 409; Bean v. Hoffendorfer, 84 Ky. 685; Kaufman v. Walker, 9 Md. 229; Conroy v. Carroll, 82 Md. 127; Pattison v. Josselyn, 43 Miss. 373; Douham v. Hoover, 135 Mo. 210; Cole v. Madden, 91 Mo. 585.

Graham & Fulkerson for respondents.

(1) This judgment should be affirmed because the trial court committed no error, and the judgment rendered is for the right party. There is no statute in this State requiring that the justice of the peace, in a case of this kind, shall recite, in the body of his judgment, that he has jurisdiction. And without such a statute the rule in this State is, that if such jurisdictional fact appears, from any of the proceedings before the justice, it is sufficient. Karnes v. Alexander, 92 Mo. 660. The fact that Henry W. Burke, the justice before whom the taxbill suit was tried, and by whom the judgment was rendered, was a justice in Washington township, appears from each and every proceeding in the case, from the filing of the suit and issuing of summons to and including the execution of the deed. And it is admitted by appellant that the city of St. Joseph is within Washington township. Under this admission Judge Ellison's opinion on rehearing in the Corrigan case is directly in point, and sustains the finding and judgment of the trial court. Corrigan v. Morris, 43 Mo.App. 463. But this identical question has been before this court, and its conclusion in those cases furnished the authority on which the trial court based its judgment in this case. Harris v. Hunt, 97 Mo. 571; Karnes v. Alexander, 92 Mo. 660. (2) Appellant has a great deal to say on the subject of inadequacy of price. But such has no place in this appeal, and is wholly foreign to the issues of this case. Inadequacy of price is not even alleged in his petition. There could be no error in excluding evidence on that question.

LAMM J. Brace, P. J., absent.

OPINION

LAMM, J.

Carpenter owned lots 19 and 20 in block 2 in Jackson's addition to the city of St. Joseph. During his ownership, on August 14, 1899, the city provided by special ordinance for the laying of a four foot brick sidewalk on the west side of Thirteenth street in front of said lots. The contract was let to Helsley Brothers who performed. On November 27, 1899, two special taxbills were issued by the city engineer of said city, whereby it was certified that the work of constructing said sidewalks was completed in accordance with ordinances, naming them; that the cost had been computed at $ 11.43 for each lot. No complaint is made as to the validity of the ordinance or the taxbills. The statutes (R. S. 1899, sec. 5664), provide that the life of the lien of such bills shall be two years after the maturity thereof. These bills matured in thirty days from date and the bills were duly assigned to respondent Fred Roth. The Statute of Limitations being about to run, and Carpenter having neglected and refused payment of the bills, Roth, on the 30th day of October, 1901, commenced suit upon the bills before Henry W. Burke, a justice of the peace within and for Washington township in Buchanan county, Missouri. Summons issued and was duly served, the cause proceeding to judgment before the justice on the 11th day of November, 1901. The validity of this judgment is assailed only on the ground that the judgment itself does not recite the alleged jurisdictional fact, to-wit, that the suit was brought before a "justice of the peace in said city" -- suits on special taxbills up to $ 300 being permitted before justices of the peace in cities of the second class under section 5664, supra. The petition was in two counts, as was proper, and the judgment followed the petition, the finding on each count being $ 13.60 -- one finding being declared a special lien against lot 19, and the other against lot 20 and the judgment otherwise being in form. A certified transcript of this judgment was filed in the office of the clerk of the circuit court in Buchanan county on November 13, 1901. An execution followed from said office on the 17th day of December, 1901, which, in effect, was a dual execution, one on each finding in the judgment with apt narrations, and is referred to in defendant's answer as "two executions."

The return on the execution shows a separate levy on each of the two lots, a due advertisement and a sale on the 10th day of January, 1902, that Eva R. Roth purchased lot 19 for the sum of $ 7.50 and purchased lot 20 for the sum of $ 5.

It seems that a deed was made and acknowledged by the sheriff to Eva Roth conveying the interest of Carpenter and Mrs. Carpenter in both the lots, showing a sale of the lots together and not separately for the proportionate share of the tax due on each. A suit was brought involving the validity of this deed and it was declared void. Thereupon, the sheriff executed an amended deed in which it was shown that the lots were levied on separately for the tax adjudged against each, were put up separately and bid off separately for the respective sums aforesaid, and the deed otherwise complied with the law.

In January, 1902, plaintiff commenced this suit in equity, the object and general nature of which was to vacate the judgment of the justice and to annul the amended deed as a cloud upon plaintiff's title. The cause was tried on an amended bill, setting forth, inter alia, that plaintiff was the owner of the lots in fee; that a suit was instituted before Burke, a justice of the peace within and for Buchanan county on the taxbills hereinbefore referred to, describing them; and that a judgment by default was rendered thereon. Said judgment is then set forth in haec verba. That a sale was made by the sheriff under a transcript execution, at which sale the said sheriff offered lots 19 and 20 for sale and did sell them jointly for the gross sum of $ 12.50 and executed a deed, which deed was thereafter adjudged to be null and void on its face. That thereafter, on the 3rd day of October, 1902, defendant induced said sheriff to execute another deed, a pretended correction of an alleged error in said first deed, wherein it was recited that said lots were sold separately and for separate sums. That said recitals were wrongful, false and fraudulent and made for the purpose of trying to maintain said sale, by the sheriff, "instead of having it appear that he did not know how to make a sale" under said execution. That the recitals in the first...