Diekroger v. McCormick

• Decision Date: 28 July 1942
• Docket Number: 38037
• Citation: 163 S.W.2d 927,349 Mo. 1098
• Parties: C. W. Diekroger, Appellant, v. C. P. McCormick et al
• Court: Missouri Supreme Court

163 S.W.2d 927

349 Mo. 1098

C. W. Diekroger, Appellant, v. C. P. McCormick et al

No. 38037

Supreme Court of Missouri

July 28, 1942

Appeal from New Madrid Circuit Court; Hon. Louis H. Schult Judge.

Affirmed.

R F. Baynes for appellant.

(1) The record title to the real estate being in the plaintiff and the defendant not pleading in his answer, facts entitling them to equitable relief, the issues should have been decided in favor of plaintiff. Richards v. Earls, 133 S.W.2d 381; Stafford v. Fizer, 82 Mo. 393; Gitchell v Kriedler, 84 Mo. 472; Myers v. Bassett, 84 Mo. 479; Cornell v. Gray, 85 Mo. 169; Allen v. McCabe, 93 Mo. 138; Williams v. Hudson, 93 Mo. 524; Paxton v. Fix, 190 S.W. 328. (2) The non est return of the sheriff in cause No. 11788, J. K. Robbins, Collector of the Revenue, v. Myrtle Stewart, was sufficient for an order of publication. Ad Valorem Mining Co. v. Miller, 204 S.W. 387; Sec. 893, R. S. 1939. (3) The order the court made on Tuesday, February 11, (Book 7, Page 316), in cause No. 11788 and which is as follows: "Court finds from sheriff's return herein that the defendants cannot be served in this county. Ordered that they be notified of the pendency of this action by order of publication to Weekly Record and cause continued," is sufficient and is authorized by statute. Sec. 893, R. S. 1939. (4) Non est return cannot be attacked collaterally as was attempted in this case. The remedy, if any, is against the officer making the return if it is false. Neither can the order of publication be attacked collaterally. Schmidt v. Niemeyer, 100 Mo. 207. (5) The order of publication in cause No. 11788 contains all the requirements of the statutes of Missouri since the amendment of 1909. Sec. 903, R. S. 1939. (6) Since the defendant's having failed to offer to refund to plaintiff amounts of taxes paid as provided in Section 11179, R. S. 1939, and having failed to offer to refund the amounts bid by plaintiff in each of the tax sales mentioned herein which was in fact, a payment of taxes, in their answer, the deeds to plaintiff cannot be set aside. Sec. 11179, R. S. 1939; Hawkins v. Heagerty, 156 S.W.2d 642.

Corbett & Peal for respondents.

(1) Where service is had by publication, there must be strict compliance with the statute. Mo. St. Ann., sec. 739, p. 959. (2) Where the allegation in the order of publication is a departure from that contained in the petition, or from the order of the court, ordering the publication, it does not give the court jurisdiction to render a decree in the cause. Cox v. Cox, 115 S.W.2d 104; Williams v. Sands, 251 Mo. 147, 158 S.W. 47; Flynn v. Tate, 286 Mo. 454, 228 S.W. 1070; Kunzi v. Hickman, 243 Mo. 103, 147 S.W. 1002; Hinkle v. Lovelace, 204 Mo. 209, 102 S.W. 1015, 11 L. R. A. (N. S.) 730, 120 Am. St. Rep. 698, 11 Ann. Cas. 794. (3) It is well settled law in this State that when service is had by publication there must be a strict compliance with the statute. Williams v. Sands, 251 Mo. 147, 158 S.W. 47; Flynn v. Tate, 286 Mo. 454, 228 S.W. 1070. (4) Where it clearly appears from the whole record that the allegation in the order of publication is a departure from that contained in the petition, or a departure from the order of the court ordering it, the court acquires no jurisdiction and a judgment rendered on such a publication is void. Secs. 891, 892, 893, R. S. 1939. (5) A publication addressed to residents who are not found is not a publication to nonresidents; one cannot be substituted for the other. Harness v. Cravens, 126 Mo. 233; Kelly v. Murdaugh, 184 Mo. 377. (6) Of course, if the order of publication, by reason of the facts aforesaid, that is from the whole record and file papers in the case is shown to be invalid, as it was, then the judgment grounded thereon must share the same fate and fall with it. And the petition, the writ of summons, the order of publication and the judgment, and all the file papers in the case being a part of the record and judgment roll, are competent witnesses of the judgment's invalidity and by them can be impeached collaterally. Harness v. Cravens, 126 Mo. 233; Laney v. Garbee, 105 Mo. 355; Milner v. Shipley, 94 Mo. 106; Adams v. Cowles, 95 Mo. 506; Crow v. Meyersieck, 88 Mo. 415; McClanahan v. West, 100 Mo. 321; Blodgett v. Schaffer, 94 Mo. 671; Russell v. Grant, 122 Mo. 161; Cloud v. Inhabitants of Pierce City, 86 Mo. 357; Cox v. Cox, 115 S.W.2d 104. (7) The defendants did not ask in the trial court, nor in their answer, nor do they ask in this court that the tax sales be set aside. Defendants say that the judgments under which plaintiff claims to be entitled to the land are void. In other words they are nothing. (8) In this case the trial court held that the judgments under which the plaintiff claimed the land were void, and that the plaintiff had failed to make out a case and ordered his petition dismissed. The trial court did not find the title to be in the defendants, nor order any tax deeds or tax sales cancelled or set aside. Manwaring v. Mo. Lbr. & Min. Co., 200 Mo. 718; Taff v. Tallman, 277 Mo. 157, 209 S.W. 868; Williams v. Sands, 251 Mo. 147, 158 S.W. 47; Queen City Inv. Co. v. Kreider, 31 S.W.2d 1002.

Westhues, C. Bohling and Barrett, CC., concur.

OPINION

WESTHUES

This is a suit to quiet title. The trial court found plaintiff was not entitled to have and recover of the defendants any part of the real estate sued for and dismissed plaintiff's petition. An appeal was duly taken.

Appellant in his brief made the following statement of the issues which we deem sufficient:

"This cause originated in the Circuit Court of New Madrid County, Missouri, by plaintiff filing therein, his petition on the 19th day of August, 1941, to quiet the title to certain real estate situated in New Madrid County, Missouri, after which defendant filed answer, which answer was amended the date of the trial by defendant striking out a portion of the prayer of said answer.

"There is practically no dispute whatsoever as to the facts in the case. The land in question was formerly owned by Myrtle Stewart, plaintiff claiming title by reason of certain sales under judgment for delinquent taxes and the defendant claiming title by reason of a quitclaim deed from the said Myrtle Stewart as hereinafter fully stated.

"Plaintiff claims title to said real estate by reason of a quit-claim deed from W. S. Edwards, Jr., and wife, dated October 15, 1941, who claimed to have acquired title to the said real estate by virtue of a sheriff's deed dated November 14, 1938, issued under authority of a special execution in cause No. 11788 entitled J. K. Robbins, Collector of Revenue, v. Myrtle Stewart, et al., and by virtue of a sheriff's deed to plaintiff herein, dated June 16, 1941, executed and delivered under authority of a special execution in cause No. 13659 entitled St. Johns Levee and Drainage District of Missouri v. Myrtle Stewart, et al.

"The defendants claim title to the real estate in question by virtue of a quit-claim deed executed by Myrtle Stewart to the defendants, dated February 20, 1940. This quit-claim deed contained this provision, 'and the parties of the second part further assuming the payment of all taxes and assessments now due or to become due on said lands.'

"In cause No. 11788 entitled J. K. Robbins, Collector of Revenue, v. Myrtle Stewart, service was had on the defendant, Myrtle Stewart, and Stewart, her husband, by order of publication based on a non est return of the sheriff of New Madrid County, Missouri.

"In cause No. 13659 entitled St. Johns Levee and Drainage District, plaintiff, v. Myrtle Stewart, et al., defendants, there was no service whatever on the defendant. The sheriff's return, however, shows that summons was ordered returned and not served by attorney for plaintiff which is erroneous, as the record shows, but the defendants were never served with process in that suit. Why the judgment was entered without service is not explained, but so far as appellant is concerned, is immaterial.

"Respondents take the position that the sheriff's deeds in both causes, No. 11788 and 13659, are void for the reason that in cause No. 11788, the order of publication is insufficient, and in cause No. 13659, there is no service. Appellants contend otherwise."

As will be noted from the above statement the defendants acquired the land in question by deed from the owner, Myrtle Stewart, who was a defendant in the tax suits. Plaintiff acquired his purported title through deeds executed pursuant to two tax sales. Plaintiff admits that in one of these tax cases there was no service, either personal or by publication, upon the owner of the land. In the other case there was a publication of notice which plaintiff claimed was sufficient but which defendants contended was a nullity. The order of publication read in part as follows:

"Now on this 11th day of February, 1938, comes the Plaintiff herein, by Attorney, R. F. Baynes, and alleges, among other things, that Defendants Myrtle Stewart and Stewart, her husband, are not residents of the County of New Madrid.

"Whereupon, it is ordered by the Court that said defendant Myrtle Stewart be notified by publication . . ."

That order of publication appears upon its face to have been based upon allegations made by plaintiff in the tax case as to the non-residence of the defendant, owner of the land. It was admitted that plaintiff's petition in the tax suit contained no such allegation and also that plaintiff did not file any affidavit as to the non-residence of the defendant owner of the land. There was a summons issued, and the return thereon recited that the sheriff made a diligent search for the defendants "but failed to find them in this county by the 20th day of September, 1937." The court...