Creason v. Yardley

Citation272 Mo. 279,198 S.W. 830
Decision Date17 November 1917
Docket NumberNo. 18499.,18499.
PartiesCREASON v. YARDLEY et al.
CourtUnited States State Supreme Court of Missouri

Appeal from Circuit Court, Sullivan County.

Action by Robert A. Creason against Dazarene Yardley and others. Judgment for plaintiff, and the named defendant appeals. Affirmed.

On February 2, 1914, plaintiff filed, in the circuit court of Sullivan county, Mo., 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 aforesaid. 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 nonresidents 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, Mo., viz.: The northwest quarter of the southwest quarter of section 36 in township 61 of range 21—and that, unless the said defendants be and appear at this court at the next term thereof to be begun and holden at the courthouse 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 30 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. Missouri 1909.

"(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 nonresident 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 36 in township 61 of range 21 in Sullivan county, Mo., 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 36 in township 61 of range 21 in Sullivan county, Mo., and that the defendants and each of them and all persons claiming by, through, or under them be and are hereby forever barred from claiming or asserting any right or title to said lands or any part thereof. It is further adjudged that plaintiff pay the costs of this proceeding taxed at the sum of $____."

On May 15, 1914, defendant Dazarene Yardley filed herein the following motion:

"Comes now the defendant Dazarene Yardley, and, entering her appearance for the purpose of making this motion, and for that purpose only, moves the court to set aside its finding and judgment in this case for the following reasons:

"(1) Because the order of publication in this case is invalid and void, and its service conferred no jurisdiction on this court over this defendant.

"(2) Because the court erred in overruling defendant's motion to quash the order of publication and the service thereof.

"(3) Because the court has obtained no jurisdiction over this defendant."

On May 16, 1914, this last motion was overruled, and on the same day said defendant Dazarene Yardley filed a motion in arrest of judgment, which said motion reads as follows:

"Comes now the defendant Dazarene Yardley, and, entering her appearance for the purpose of making this motion, and for that purpose only, moves the court to arrest the judgment in this case, and for grounds of her said motion says:

"(1) That upon the whole record in said cause the judgment is erroneous.

"(2) That the court obtained and had no jurisdiction over this defendant.

"(3) That the court has no jurisdiction to render the judgment it rendered against this defendant.

"(4) That the order of publication in this case is invalid and void."

This motion was likewise overruled, and the cause duly appealed to this court by defendant Dazarene Yardley.

D. M. Wilson, of Milan, for appellant. E. B. Fields, of Browning, for respondent.

RAILEY, C. (after stating the facts as above).

Dazarene Yardley is the sole appellant in this court, and has assigned several alleged errors of the trial court as grounds for reversal.

I. It is claimed that the circuit court committed error in overruling appellant's motion to quash the order of publication issued in this cause and the service thereof. The order of publication is heretofore set out, and speaks for itself. It does not purport to run in the name of the state of Missouri.

Section 38 of article 6 of our Constitution provides that:

"All writs and process shall run * * * in the name of the `state of Missouri.'"

Section 24 of article 4 of the Constitution reads as follows:

"The style of the laws of this state shall be: `Be it enacted by the General Assembly of the state of Missouri, as follows.'"

It is not provided in section 38, supra, or elsewhere in the Constitution, that if the order of publication, in a case of this character conveys the same information which it would impart if running in the name of the ...

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15 cases
  • Spitcaufsky v. Hatten
    • United States
    • Missouri Supreme Court
    • 31 Julio 1944
    ... ... Creason v. Yardley, 272 Mo. 279, 198 S.W. 830. (10) The provisions of the act and particularly Sections 22 and 27 thereof, for acquiring jurisdiction over ... ...
  • Spitcaufsky v. Hatten
    • United States
    • Missouri Supreme Court
    • 31 Julio 1944
    ... ... parties does not prevent the court from acquiring ... jurisdiction nor is Section 38, Article VI, of the ... Constitution violated. Creason v. Yardley, 272 Mo ... 279, 198 S.W. 830. (10) The provisions of the act and ... particularly Sections 22 and 27 thereof, for acquiring ... ...
  • State ex rel. Morgan v. Hemenway
    • United States
    • Missouri Supreme Court
    • 17 Noviembre 1917
  • Messick v. Grainger
    • United States
    • Missouri Supreme Court
    • 10 Noviembre 1947
    ... ... Wells v. Hough, 193 Mo. Sup. 16, s.c ... 91 S.W. 905; Hancock v. Spencer, 166 Mo. Sup. l.c ... 285; Spitcaufsky v. Hatten, 182 S.W. 86; Creason ... v. Yardley, 198 S.W. 830; State v. Cave, 199 ... S.W. 1014; State ex rel. Brown v. Stewart, 281 S.W ... 768; State v. Becker, 9 S.W.2d 155; ... ...
  • Request a trial to view additional results

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