Chilton v. Tam

• Decision Date: 01 July 1911
• Citation: 139 S.W. 126,235 Mo. 498
• Parties: CHILTON v. TAM et al.
• Court: Missouri Supreme Court

139 S.W. 126

235 Mo. 498

CHILTON v. TAM et al.

Supreme Court of Missouri, Division No. 1.

July 1, 1911.

1. PROCESS (§ 85) — SERVICE — CONSTRUCTIVE NOTICE—STATUTORY PROVISIONS.

The service of constructive notice by which a man's property may be seized and sold under a judgment rendered in a suit of which he had in fact no notice at all is allowed only from necessity, and a plaintiff, to avail himself of it, must make a strict compliance with the law allowing it.

2. PROCESS (§ 95)—SERVICE—PUBLICATION— SUFFICIENCY OF PETITION.

Under Rev. St. 1909, § 1770, authorizing an order of publication of process if the plaintiff or other person for him shall allege in his petition, or at the time of filing it, or at any time thereafter shall file an affidavit stating, that part or all of the defendants are nonresidents of the state, a petition in a tax suit stating "that the defendant ____ nonresident ____ of the state of Missouri, so that the ordinary process of law cannot be served upon ____," is insufficient to authorize an order of publication.

Appeal from Circuit Court, Shannon County; W. N. Evans, Judge.

Action by J. William Chilton against T. S. Tam and others. From a judgment for defendants, plaintiff appeals. Reversed and remanded, with directions.

James Orchard and J. W. Chilton, for appellant.

VALLIANT, J.

This is a suit under section 650, R. S. 1899, to quiet title to N. ½, section 25, township 31, range 4 W., in Shannon county. It was agreed at the trial that Eugene F. Sawyer and wife and James W. Cummer and wife were the common source of title. Plaintiff introduced in evidence a deed from those parties duly executed dated December 29, 1906, and duly recorded. Plaintiff then rested. Defendants introduced in evidence a sheriff's deed under special execution on a judgment for taxes against the land rendered March 10, 1897, in the circuit court of Shannon county. In the suit in which the judgment was rendered the state on relation of the collector of revenue of Shannon county was plaintiff and S. L. Nichols, James Buck, Joseph S. Tam, James W. Cummer, Mary B. Cummer, Eugene F. Sawyer, and Kate M. Sawyer were defendants. There was no service of process in the case and no appearance of defendants, but an order of publication against them as nonresidents and proof of publication filed. The order of publication was made by the clerk in vacation and recites that the plaintiff's petition states "among other things that the defendants are nonresidents of the state of Missouri, and cannot be summoned in this action by the ordinary process of law." Plaintiff in rebuttal introduced in evidence a duly certified transcript of the record in the case, including the petition on which the order of publication was based. The only statement in petition in reference to the residence of the...