Charley v. Kelley

• Decision Date: 05 February 1894
• Citation: 120 Mo. 134,25 S.W. 571
• Parties: CHARLEY v. KELLEY.
• Court: Missouri Supreme Court

25 S.W. 571

120 Mo. 134

CHARLEY v. KELLEY.

Supreme Court of Missouri, Division No. 1.

February 5, 1894.

MUNICIPAL CORPORATIONS — SPECIAL TAX BILLS — ENFORCEMENT — JURISDICTION — SALE — PRESUMPTIONS — INFANCY — SERVICE OF PUBLICATION.

1. In enforcing special tax bills authorized by the charter of Kansas City of 1875, which, in article 8, § 4, p. 75, provides that any such tax bill may be collected by suit in any court of competent jurisdiction, and, in case any owner of the ground is a nonresident, by order or notice published, the circuit court is in the exercise of its general jurisdiction, and judgments in such cases are not open to collateral attack.

2. Where the order for publication of notice to nonresidents is signed by the clerk, and spread upon the record, and shows that it was made in vacation, it is sufficient, and a recital of these facts in the record is not necessary, as Rev. St. 1879, § 3494, provides that in vacation the clerk shall make orders to nonresidents.

3. Where, in a suit to enforce special tax bills against nonresidents, the judgment contains a finding that an order for publication previously made was duly published, such finding is not assailable in ejectment against a purchaser under the sheriff's sale.

4. Where the affidavit for publication fails to state that it was made for plaintiff, and the court finds that an order of publication was made, it will be presumed that it also found that the affidavit was made for plaintiff, as such fact is susceptible of proof.

5. Though Rev. St. 1879, § 3477, provides that after suit brought against an infant, and the service of process upon him, the suit shall not be prosecuted any further until a guardian for him be appointed, a judgment rendered against him without such appointment is voidable, and not void, and can be enforced until reversed for error, or set aside by direct proceedings.

Appeal from circuit court, Jackson county; John W. Henry, Judge.

Action by James Charley against James Kelley. From a judgment for defendant, plaintiff appeals. Affirmed.

H. M. Meriwether and Johnson & Lucas, for appellant. W. C. Scarritt, for respondent.

MACFARLANE, J.

This is an action of ejectment to recover an undivided interest in a lot in Kansas City. The judgment of the circuit court was for defendant, and plaintiff has appealed.

Plaintiff claims title to one-half of one-third interest as an heir of William Gillis, and one-half of one-third as heir of his deceased brother, Francis Boyer. Defendant bases his title to the property upon a sheriff's sale and deed under an execution upon a judgment of the circuit court of Jackson county in favor of John Halpin against the said Boyer, plaintiff, and others. It is conceded that plaintiff has title, unless the sheriff's deed was sufficient to transfer it to the grantee. The judgment was upon a special tax bill charged against the property in dispute. At the time the suit on the tax bill was commenced, both plaintiff and his brother, Francis Boyer, were minors, and nonresidents of this state. The suit for enforcing the tax bill against the property charged was authorized by the charter of Kansas City. That the execution, levy, sale, and sheriff's deed were regular, is conceded by plaintiff. The objections are — First, that the court, under the proceedings had, did not acquire jurisdiction of the persons of plaintiff and his brother; and, second, the court had no authority to enter the judgment against plaintiff, for the reason that he was at the time a minor, and no guardian ad litem was appointed to represent him. The petition in the suit was filed April 16, 1875. The following order was read from the records of the court: "Be it remembered, that on the ___ day of ___, A. D. 1875, in vacation of the circuit court of Jackson county, Missouri, at Independence, the following, among other proceedings, were had and made, to wit." Then follows the style of the case, naming John Halpin as plaintiff, and Francis Boyer, a minor under 21 years of age, James Charley, Jr., and others, as defendants, and the notice proceeded: "To Francis Boyer and James Charley, Jr.: You are hereby notified that an action has been commenced against you, together with the above-mentioned defendants, by the above plaintiff, in the circuit court of Jackson county, at Independence, Missouri." Then follows a statement of the object and general nature of the petition, and a specific description of the property charged with the lien of the tax bill, and concludes as follows: "Unless you be and appear at the next term of said court, to be begun and holden at the courthouse in said city of Independence on the 13th day of September, 1875, and on or before the third day of said term, if the same so long continue, and, if not, then before the end of said term, the petition will be taken as confessed, judgment rendered, and the lien enforced against said real estate, as prayed for in said petition. It is further ordered that publication be made in the Evening Mail, a newspaper published in the county of Jackson, Missouri, for four weeks, successively, the last insertion to be at least four weeks before the commencement of next term of said court. Attest: Wallace Laws, Clerk. Tichenor & Warner, for Plaintiff." To the petition was attached an affidavit made by James Gibson "that Francis Boyer, minor, under twenty-one years of age, and James Charley, Jr., defendants in the above-entitled cause, are nonresidents of the state of Missouri, so that the ordinary process of law cannot be served upon them." It was shown by oral evidence that Tichenor & Warner were the attorneys for plaintiff in the suit, and that James Gibson was a clerk in their office, — at the time also a practicing lawyer, — and had charge of the collections of these tax bills, and that he prepared the petition and made the affidavit, and attached it to the petition. On the 20th day of September, 1876, a judgment was rendered which contained the following recital: "Now comes plaintiff by attorney, and shows to the court that publication has been made in this cause according to the statutes in such cases made and provided, and in accordance with the orders hereinbefore...