Crossland v. Admire

• Decision Date: 23 May 1899
• Citation: 149 Mo. 650,51 S.W. 463
• Parties: CROSSLAND v. ADMIRE.
• Court: Missouri Supreme Court

51 S.W. 463

149 Mo. 650

CROSSLAND v. ADMIRE.

Supreme Court of Missouri, Division No. 1.

May 23, 1899.

BILL OF EXCEPTIONS — MINUTES OF COURT — SERVICE BY PUBLICATION — JUDGMENT.

1. Matters which are certified by the judge in the minutes of the court need not be incorporated into a bill of exceptions, and certified by him, in order to receive the consideration of the appellate court.

2. Defendant was a resident of the state, and a petition was filed and a summons issued against him as such, without any affidavit of nonresidence. On a non est return of the summons, an order of publication was issued against him as a nonresident, and on proof of publication the judgment was rendered. Held, that the court had no jurisdiction to enter such judgment.

Appeal from circuit court, Lincoln county; E. M. Hughes, Judge.

Action of ejectment brought by Washington Crossland against James C. Admire. From a judgment in favor of defendant, plaintiff appealed. Reversed.

Jas. M. Lewis and Chas. M. Napton, for appellant. Norton & Avery, for respondent.

BRACE, P. J.

This is an action in ejectment to recover an 80-acre tract of land in Lincoln county. The petition is in common form. The defendant, though duly summoned, did not answer or otherwise plead, and final judgment was entered against him. Afterwards, upon the same day, on motion of defendant, the judgment was set aside, and from the order setting aside the judgment the plaintiff appealed to this court, where the appeal was dismissed on the 21st of November, 1893. 118 Mo. 87, 24 S. W. 154. The record entries of the proceedings thereafter had in the case, as shown by the transcript filed herein, are as follows, omitting caption and immaterial matters: Mandate of supreme court "filed in vacation December 11, 1893." "April 4, 1894," "ninth day of spring term," "continued." "Oct. 9, 1894," "second day of fall term," "plaintiff, by leave of court, withdraws his application for a change of venue in this cause," and on the same day "plaintiff presents his bond for costs, * * * which said bond is by the court approved and ordered filed." "And afterwards, on the 19th day of December, 1895, it being the 10th day of the fall adjourned term, 1895, the following further proceedings were had in said cause, to wit: Now here, on this day, come the parties to this suit, by their attorneys, and, all matters and things herein contained being submitted to the court of the following described lands, to wit, west half of the northeast quarter of section 15, township 49, range 2 east, containing 80 acres; the court, after hearing all the evidence in the cause, and argument of counsel, renders a verdict in favor of defendant for the possession of the following described premises, situated in Lincoln county, Missouri, to wit, the west half of the northeast quarter of section 15, containing 80 acres. It is ordered and adjudged by the court that defendant have and recover of plaintiff, and George Crossland and James M. Lewis, as his sureties, his costs and charges herein incurred, and that he have execution issued therefor." Afterwards, on the same day, plaintiff, by his attorneys, "file motion for new trial in words and figures as follows, to wit" (setting out motion), and on the same day: "Now here, on this day, come the parties to this suit, by their attorneys, and, the motion heretofore filed for a new trial being taken up, and submitted to the court, is by the court continued." "And afterwards, to wit, on the 23d of March, 1896, it being the first day of spring term, 1896, the following further proceedings were had in said cause, to wit: Now here, on this day, come the parties to this suit, by their respective attorneys, and, the motion for a new trial heretofore filed being taken up, and submitted to the court, is by the court overruled. Affidavit for appeal filed. Appeal granted. Bond approved. Bill of exceptions to be filed in 30 days after end of term." "Afterwards, to wit, on the 2d day of April, 1896, 9th day of spring term, the plaintiff filed with the clerk of the circuit court of Lincoln county his affidavit for appeal, in words and figures as follows, to wit" (then follows a copy of the entry of the filing of the affidavit, and appeal bond, a copy thereof, and its approval in open court on the same day). The next entry is as follows: "And afterwards, to wit, on the 5th day of May, 1896, in vacation, the plaintiff filed his bill of exceptions, in words...