Creason v. Yardley

• Decision Date: 17 November 1917
• Parties: ROBERT A. CREASON v. DAZARENE YARDLEY and Unknown Heirs of OLIVER MYERS; DAZARENE YARDLEY, Appellant
• Court: Missouri Supreme Court

198 S.W. 830

272 Mo. 279

ROBERT A. CREASON v. DAZARENE YARDLEY and Unknown Heirs of OLIVER MYERS; DAZARENE YARDLEY, Appellant

Supreme Court of Missouri

November 17, 1917

Appeal from Sullivan Circuit Court. -- Hon. Fred Lamb, Judge.

Affirmed.

D. M Wilson for appellant.

(1) All writs and process shall run in the name of the State of Missouri. Sec. 38, art. 6, Mo. Constitution. (2) Although this requirement of the Constitution is directory, and its omission only an irregularity, yet it can be taken advantage of (as was done in this case) by motion to quash. Doan v Boley, 38 Mo. 449. (3) Error apparent on the face of the record, which includes the pleadings, summons (order of publication) and judgment, may be taken advantage of in the Supreme Court whether any motion was made or exceptions taken in the court below or not. Bateson v. Clark, 37 Mo 31. (4) The order of publication shall be directed to the non-residents. Sec. 1770, R. S. 1909. (5) Jurisdiction of the person can only be acquired by a strict compliance with the requirements of the statute, and if the statutory provisions authorizing service by publication are not complied with the judgment against the appellant is void. Parker v. Burton, 172 Mo. 91; Kelly v. Murdagh, 184 Mo. 377. (6) An order of publication must be in strict compliance with the statute. Schell v. Leland, 45 Mo. 289; State ex rel. v. Field, 107 Mo. 451; Harness v. Cravens, 126 Mo. 246-253; Lumber Co. v. Keener, 217 Mo. 529; Stanton v. Thompson, 234 Mo. 7. (7) Although the record of a court of general jurisdiction recites that the defendant has been duly served with process, it is competent to overthrow such recital by showing by other parts of the record that such recital is not true. Williams v. Monroe, 125 Mo. 584. (8) The order of publication shall state briefly the object and general nature of the petition. Sec. 1770, R. S. 1909. And the true meaning of the statute is that it shall go to the extent of a substantial statement of all the objects of the suit. Bobb v. Woodward, 42 Mo. 489.

E. B. Fields for respondent.

(1) The provision requiring process to run in the name of the State of Missouri is directory merely. State v. Foster, 61 Mo. 449; Cape Girardeau v. Riley, 52 Mo. 424; Davis v. Wood, 7 Mo. 162; Bick v. Wilkerson, 62 Mo.App. 31. (2) The order of publication is sufficient in substance. It advises the defendant of the commencement of the suit and its object and general nature (that it is to ascertain and determine the interests of the respective parties to the lands described in the petition and order of publication). This is all that is required. Sec. 1770, R. S. 1899; Jasper County v. Wadlow, 82 Mo. 172; Hambel v. Lowry, 264 Mo. 168. (3) This publication is sufficient in substance and form and is a copy almost verbatim of the order in the case of Miller v. Keaton, 260 Mo. 708, set out in full on page 714. Hambel v. Lowry, 264 Mo. 168. This is the form that has been published in every revision of the statutes since 1855: Form 86, vol. 2, R. S. 1855; Form 86, G. S. 1865, p. 993; Form No. 86, vol. 2, Wagner's Statutes, p. 1411; Form No. 86, R. S. 1879, p. 716; Form 91, R. S. 1889, p. 2248; Form 87, vol. 1, R. S. 1899; Form 129, R. S. 1909, p. 3760. Thus it had the legislative sanction for more than fifty years, in which no other form was ever given and it is doubtful if any other form was ever used in the general practice of this State and it has met with frequent approval of the appellate courts of this State. Authorities supra. (4) The defendants had notice as the appellant appeared and made the motions referred to in the record. There is no pretense that her rights were in any way prejudiced or that she was deprived of any opportunity to make her defense, and merely commencing the order with the words, "The State of Missouri to Dazarene Yardley," would not have helped her cause in the least. The objection is entirely too technical. State v. Foster, 61 Mo. 551.

RAILEY, C. Graves, C. J., and Walker, Blair and Williams, JJ., concur. Faris and Woodson, JJ., concur in result. Bond, J., dissents.

OPINION

In Banc.

RAILEY C.

On February 2, 1914, plaintiff filed in the circuit court of Sullivan County, Missouri, his petition against the above named defendants, to quiet title to the northwest quarter of the southwest quarter of Section 36, Township 61, Range 21, located in Sullivan County, Missouri. Said petition avers:

"That the defendants and each of them claim and assert title to the aforesaid real estate, and that the claims of said defendants are adverse and prejudicial to the title and interest of plaintiff in said real property. Wherefore, plaintiff prays the court to try, ascertain and determine the estates, title and interests of plaintiff and defendants of, in and to the said real estate hereinbefore described, and by its decrees to adjudge, determine, settle, quiet and define the respective rights, titles, interests and estates of plaintiff and defendants to said real property; . . . and for all other proper orders and relief in the premises."

Said petition was verified by the affidavit of plaintiff, which contained the following:

"And affiant further states that the defendants are non-residents of the State of Missouri."

On February 2, 1914, the clerk of the circuit court aforesaid entered of record, the following:

ORDER OF PUBLICATION.

State of Missouri, County of Sullivan -- ss.

In the Circuit Court, May Term, 1914. Robert A. Creason, Plaintiff, v. Dazarene Yardley, and the Unknown Heirs, Consort, Devisees, Alienees and Immediate, Mesne, Remote, Voluntary and Involuntary Grantees of Oliver Myers, Deceased, Defendants.

Now at this day comes the plaintiff herein by his attorney, E. B. Fields, and files his petition and affidavit alleging among other things that defendants Dazarene Yardley and the unknown heirs, consort, devisees, alienees and immediate, mesne, remote, voluntary and involuntary grantees of Oliver Myers, deceased, are not residents of the State of Missouri; whereupon it is ordered by the clerk in vacation of court that said defendants be notified by publication that plaintiff has commenced a suit against them in this court, the object and general nature of which is to try, ascertain and determine the estate, title and interest of plaintiff and defendants in and to the following described real estate, lying and being in Sullivan County, Missouri, viz., the northwest quarter of the southwest quarter of section thirty-six in township sixty-one of range twenty-one; and that unless the said defendants be and appear at this court at the next term thereof to be begun and holden at the court house in the city of Milan in said county on the 4th day of May next and on or before said day answer or plead to the petition in said cause, the same will be taken as confessed, and judgment will be rendered accordingly. And it is further ordered that a copy hereof be published according to law in the Milan Standard, a newspaper published in said county of Sullivan, for four weeks successively, published at least once a week, the last insertion to be at least thirty days before the first day of said next May term of this court.

A. D. Morrison,

Circuit Clerk.

A duly certified copy of this order was published in the Milan Standard on the 5th, 12th, 19th and 26th days of February, 1914, and proof of publication duly filed.

On May 5, 1914, being the first day of the May term, 1914, of said court, the defendant, Dazarene Yardley, filed her motion to quash the order of publication and the service thereof. Said motion, without formal parts, reads as follows:

Comes now the defendant Dazarene Yardley for the sole purpose of making this motion, and for that purpose only moves the court to quash the order of publication and service of process in this case, and for grounds of her said motion, says:

1. That said order and process is defective and irregular in this, that it does not comply with the provisions of Section 38 of Article 6 of the Constitution of the State of Missouri.

2. That said order and process is defective and irregular in this, that it does not comply with the provisions of Section 1770, R. S. of Missouri, 1910.

3. That said process and order does not run in the name of the State of Missouri as required by law.

4. That said order and process is not directed to the non-resident defendant Dazarene Yardley as required by the statute.

5. That said order and process does not state the object and general nature of the petition as required by the statute."

This motion was overruled on May 7, 1914.

Afterwards, during said May term, and on May 14, 1914, the court entered its judgment, as follows:

Now on this 14th day of May, 1914, the above cause comes on to be heard, and it appearing to the court that each of the above named defendants had been duly notified and served by publication according to law, and the issues all and singular being submitted to the court upon the pleadings and evidence adduced by the plaintiff, the court doth find, ascertain and determine that the plaintiff Robert A. Creason is the owner in fee simple of the land described in his petition, to-wit, the northwest quarter of the southwest quarter of section thirty-six in township sixty-one of range twenty-one in Sullivan County, Missouri, and that the defendants neither of them have any right or title in said lands. It is therefore ascertained, determined, decreed and adjudged by the court that the plaintiff is the owner in fee simple of the said lands, to-wit, the northwest quarter of the southwest quarter of section thirty-six in township sixty-one of range twenty-one in Sullivan County, Missouri, and that the defendants and each of them and all persons claiming by, through

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