Cummings v. Brown

• Decision Date: 25 May 1904
• Citation: 81 S.W. 158,181 Mo. 711
• Parties: CUMMINGS v. BROWN et al.
• Court: Missouri Supreme Court

81 S.W. 158

181 Mo. 711

CUMMINGS v. BROWN et al.

Supreme Court of Missouri, Division No. 1.

May 25, 1904.

TAXATION — SHERIFF'S DEED — PRIMA FACIE EVIDENCE — PROCESS — SERVICE — PUBLICATION OF SUMMONS — ORDERS — PROOF.

1. Under Rev. St. 1899, § 3210, providing that a sheriff's deed shall be evidence of the truth of its recitals, the introduction of such a deed of the land in controversy to plaintiff in ejectment established a prima facie case showing his right to recover the land.

2. The prima facie case established by the introduction of a sheriff's deed of the land in controversy to plaintiff in ejectment may be overcome by the defendant's introduction of the whole record in the case, showing that the judgment on which the deed was founded was invalid.

3. Under Rev. St. 1899, §§ 567, 568, providing for the service of original writs, the officer charged with the service of a summons has no right to return the same "Not found" before the return day.

4. Where a sheriff executed a return of "Not found" on a summons not returnable until the second Monday in September, 1899, on June 22, 1899, it could not be presumed, in the absence of a memorandum showing the date of the filing of the summons in the clerk's office, that the sheriff kept it in his possession seeking to execute it until the return day.

5. In the absence of an affidavit that defendant was a nonresident or nonaccessible, and such fact not being alleged in the petition, an order for the publication of the summons cannot be sustained under Rev. St. 1899, § 575, providing that in suits affecting real property, if the plaintiff shall allege in his petition or shall file an affidavit stating that any of the defendants are nonresidents, and cannot be served in the state, or have absconded, etc., the court, or the clerk in vacation, may order summons to be served by publication.

6. Where there was no valid return of the summons that defendant could not be found, and it did not appear that the court had determined on proof that the defendant could not be served with process, and the court made no order for the publication thereof, publication was not justified under Rev. St. 1899, § 577, providing that when, in an action affecting real property, summons shall be issued against any defendant, and the sheriff shall make return that defendant cannot be found, the court, being first satisfied that process cannot be served, shall make an order for the publication thereof.

7. An order of the court can be proved only by the court's record.

Appeal from Circuit Court, Greene County; Jas. T. Neville, Judge.

Action by Julia Cummings against H. H. Brown and another. From a judgment in favor of defendants, plaintiff appeals. Affirmed.

W. D. Tatlow, for appellant. Wright Bros. & Blair, for respondents.

VALLIANT, J.

Plaintiff sues in ejectment for the possession of a lot in the city of Springfield. At the trial it was admitted that the title to the lot was in defendant Walter L. Wilson on May 6, 1896; that defendants were in possession when the suit was brought, and so continued; and that the rental value of the property was $8 a month. Plaintiff introduced in evidence a deed from the sheriff of Greene county to her, dated November 14, 1900. The deed recited that on August 16, 1900, a judgment was rendered in the circuit court of the county in favor of the state of Missouri, at the relation of the collector of revenue of the county, against the defendant Walter L. Wilson for $16.95 for delinquent taxes on the lot in question for the year 1896, and costs, and that it was decreed that the state had a lien on the lot for the taxes and costs, which should be foreclosed; that special execution issued on the judgment, under which execution, after due advertisement of sale, the lot was sold at auction, and plaintiff became the purchaser at the price of $25, and the deed was made accordingly. The deed was duly acknowledged and recorded. That was the plaintiff's evidence in chief. Defendants produced in evidence the whole record in the tax suit in which the judgment was rendered, from which the following was shown: The summons was issued May 11, 1899, directed to the sheriff of Greene county, commanding him to summon Walter L. Wilson to appear before the court on the second Monday in September, 1899, to answer the suit. The following is the return of the sheriff: "Executed the within writ in Greene county, Missouri, on the 22d day of June, 1899, by after making search and inquiry am unable to find the within-named defendant Walter L. Wilson in Greene county, Mo.," signed by the sheriff. On what was called the "clerk's docket" was shown this memorandum: "State of Missouri ex rel. to the Use of Henry Trevathan, vs. Walter L. Wilson. No. 28,716. 2-8-1900. Order Pub. to Leader Democrat." On February 8, 1900, a publication was made in the newspaper named in the form of an order of publication as if made by the court, reciting the return of the sheriff, and basing the order on that return only, notifying the defendant Wilson that the suit was filed, and warning him to appear at the May term, 1900, to answer the same. The publication was made in proper time, and proof thereof filed. The defendant...