Cole v. Parker-Washington Company
| Decision Date | 19 December 1918 |
| Parties | JOHN GULLY COLE et al., PHILLA OLDS COLE et al., Appellants, v. PARKER-WASHINGTON COMPANY et al. JOHN GULLY COLE et al. v. PARKER-WASHINGTON COMPANY, Appellant |
| Court | Missouri Supreme Court |
Appeal from St. Louis City Circuit Court. -- Hon. Leo S. Rassieur Judge.
Reversed and remanded (with directions).
R. M Nichols for Philla Olds Cole et al., appellants, and Anna E Sands et al., respondents.
(1) Under the common law the death of a party abates the suit. Our statute saves that abatement until and during the third term after the death for revival in the name of the legal representatives, in all cases where such suit would survive; but if not revived on or before the third term, the action abates as to the party, and the interest of his representatives and successors; James W. Cole died June 5, 1907, before the return day (June 10, 1907) of the order of publication, and the judgment rendered against him February 20, 1908, without such revival and against the positive prohibition of Sec. 1923, R. S. 1909, although served by publication and constructively in court, is a nullity. R. S. 1909, secs. 1916, 1921, 1923; Sargent v. Rowsey, 89 Mo. 618; Murphy v. Redmond, 46 Mo. 317; Rentschler v. Jamison, 6 Mo.App. 135; Weiler Mfr. Co. v. Eaton, 81 Mo.App. 657; Childers v. Schantz, 120 Mo. 305; Adams v. Gossom, 228 Mo. 566; In re Young's Estate, 116 P. 1060; Life Assn. of America v. Fassett, 102 Ill. 315; Bevens v. Henderson, 86 N. E. (Ind.) 428; Kager v. Vickery, 49 L. R. A. 153, and note. (2) The writ was not returnable until June 10, 1907, the first day of the term. The defendant James W. Cole had until that day to make return. His death on June 5th suspended the service and the command of the writ until his "representatives or successors" were appointed, and the judgment rendered without bringing in his "representatives or successors" and while said service was suspended is absolutely void. In re Young's Estate, 59 Ore. 362, 116 P. 1060, 27 Am. & Eng. Ann. Cas., 1311; McBride v. Railway, 19 Ore. 64, 23 P. 814; Reilly v. Hart, 130 N.Y. 625, 29 N.E. 1099; Wilson v. Darrow, 223 Mo. 521; Weiss v. Aaron, 75 Miss. 135, 65 Am. St. 594. (3) The petition does not state a cause of action against Wm. T. Cole (son of Robert S. Cole) and Philla Olds Cole (widow of James W. Cole). The allegation is that they "claim some interest in each of the different described tracts of land." The allegation of title is that "James W. Cole, John J. Cole and the unknown heirs of Robert S. Cole, deceased, are the owners of the real estate." The judgment by default is therefore void as against them. 21 Ency. Pl. & Prac. p. 712; 23 Cyc. 740; Carpenter v. Guenther, 215 Mo. 562; Clark v. Holmes, 120 P. 642; Schueler v. Mueller, 193 Ill. 402, 61 N.E. 1044. (4) The judgment is absolutely void as a judgment against the unknown heirs of Robert S. Cole, deceased, who are Wm. T. Cole, Sarah J. Ridpath, Anna E. Sands and Mary Cole Palmer, for the reason that the petition does not allege, and the order of publication does not set forth, "that it [plaintiff] verily believes there are persons interested in, or who claim to be interested in, the subject-matter of the petition, whose names he cannot insert therein because they are unknown to him," and for the further reason that the petition does not "describe the claims or interests therein of such unknown parties, and how such claims or interests are derived, so far as known to him." R. S. 1909, sec. 1776; Davis v. Montgomery, 205 Mo. 272; Land & M. Co. v. Land & C. Co., 187 Mo. 420; Petts v. Staley, 76 Mo. 158.
Barclay, Orthwein & Wallace for Parker-Washington Company, respondent and appellant.
(1) The points made by appellants are not reviewable so far as relates to proceedings at the first trial of the cause. Unless a motion for a new trial was duly and seasonably filed, after the proceedings leading to the interlocutory findings and judgment in partition, those proceedings cannot be reviewed upon a motion for new trial filed at a later term, after the final judgment. Only points made by a motion for new trial are available to reach supposed errors occurring at a former trial. Green v. Walker, 99 Mo. 68; Brady v. Connelly, 52 Mo. 19; Hatcher v. Moore, 51 Mo. 115; Vineyard v. Matney, 68 Mo. 105. And the interlocutory decree is itself a subject for a separate appeal, if desired; though such appeal is not imperative, if due steps are taken to preserve the review of the proceedings and evidence on which the same is based. R. S. 1909, sec. 2038. But if they are not taken, those proceedings are no longer reviewable (outside the record proper) Padgett v. Smith, 206 Mo. 311; Richardson v. Schuyler Co. Assn., 156 Mo. 407. (2) No motion for new trial was filed by plaintiffs (or by any of them) after the interlocutory trial and finding adjudging the rights of the parties in the land to be partitioned; and a motion after the final order of distribution was too late to bring into review the proceedings before the interlocutory judgment in partition. Windes v. Earp, 150 Mo. 600; Ess v. Griffith, 128 Mo. 50; Richardson v. Schuyler Co. Assn., 156 Mo. 407. (3) A judgment obtained upon process duly executed is valid, although the defendant may have died during the proceedings and before judgment. Colman v. McAnulty, 16 Mo. 175; Bank v. McWharters, 52 Mo. 34; State ex rel. Ozark Co. v. Tate, 109 Mo. 265. (4) Where a party dies after suit is brought, the judgment may not be successfully attacked collaterally, and this especially where the court has jurisdiction of both res and the person. The last insertion of the publication in this case was May 18, 1907. James W. Cole died June 5, 1907. The court had jurisdiction of both the res and the person before James W. Cole died, which was far more than was necessary to give same validity as against collateral attack. State ex rel. Potter v. Riley, 219 Mo. 687; Gundy v. Cooper, 77 Mo.App. 354. (5) Even where publication is not complete, but the court has jurisdiction and control of the res (as in an attachment) and a party interested dies during the pendency of the suit, and without court action thereon, the judgment is not void and cannot be defeated collaterally. Shea v. Shea, 154 Mo. 601. (6) The former decree (which plaintiffs here seek to attack collaterally) contains a recital that the process was duly served in that case by publication. It has been well settled in this State that where a judgment recites publication as having been duly made according to law, it can only be attacked "in a direct proceeding instituted for that purpose and it cannot be assailed collaterally." Brawley v. Ranney, 67 Mo. 283; Kane v. McCown, 55 Mo. 200; Johnson v. Gage, 57 Mo. 165. (7) When the order of publication complies substantially with the statue, it is not subject to be successfully impaired collaterally. Jasper Co. v. Wadlow, 82 Mo. 179. (8) Where jurisdiction exists, irregularities, or even substantial errors, are unavailing when brought forth collaterally, if the court has jurisdiction. Rosenheim v. Hartsock, 90 Mo. 365; Burke v. City, 118 Mo. 309; Union Depot v. Frederick, 117 Mo. 138; State v. Miller, 110 Mo.App. 542. (9) The imperfect statement of a cause of action does not deprive the court of jurisdiction to proceed. It is an error which will be disregarded when a judgment ensues, assuming always that there are sufficient facts to show the court had jurisdiction of the subject-matter. Furthermore, the cause of action in this case was a suit to enforce a lien on a special tax bill against certain property and did not have to state what the exact interest of each defendant was, in order to state a cause of action, as the purpose of making parties defendant is merely to notify them of the enforcement of the lien and give them an opportunity to show why the lien is not valid, but does not contemplate a personal judgment against them. Rosenheim v. Hartsock, 90 Mo. 365; State v. South Ry. Co., 100 Mo. 59; Shea v. Shea, 154 Mo. 601; St. Louis v. Oeters, 36 Mo. 456; Anderson v. Holland, 40 Mo. 600. (10) Non-residents may be served by publication under Sec. 1770, R. S. 1909. Unknown parties are served under Sec. 1776, R. S. 1909, and the requirements of the two sections differ. Section 1770 requires "the setting out, briefly, the object and general nature of the petition." Section 1776 requires the setting out "how such claims or interests are derived so far as is known to him." The petition and order of publication in the tax-bill suit was sufficient under both those sections, because the petition stated the general nature and object and described the interest of the unknown parties as far as was known to plaintiff, which is all the law demands or could demand of a plaintiff. R. S. 1909, secs. 1770, 1776.
OPINION
In Banc
This suit was instituted in the circuit court of the city of St. Louis by the plaintiffs against the defendants to partition three lots of ground situate in said city. The decree of partition was in favor of the plaintiff John Gully Cole, and against the plaintiffs Philla Olds Cole and James Gilbert Cole, and partially for and partially against the defendant Parker-Washington Company, and in favor of the defendants Anna E. Sands, Sarah J. Ridpath and Mary Cole Palmer.
Those against whom the decree was rendered duly appealed the cause to this court.
The Parker-Washington Company (which for brevity will hereinafter be designated as the Company) bases its claim of interest in and to the lots through a sale by execution had...
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