Feurt v. Caster

• Decision Date: 18 March 1903
• Citation: 73 S.W. 576,174 Mo. 289
• Parties: FEURT v. CASTER.
• Court: Missouri Supreme Court

73 S.W. 576

174 Mo. 289

FEURT v. CASTER.

Supreme Court of Missouri, Division No. 1.

March 18, 1903.

HOMESTEAD — INTENTION — JUDGMENT—COLLATERAL ATTACK—SERVICE OF SUMMONS —RETURN OF AMENDMENT.

1. Plaintiff and his wife owned adjoining tracts of land. For many years before and after her death he lived on his tract, and cultivated both tracts, until he conveyed his tract to the grantor of defendant, and moved off, renting a farm 1½ miles away, and selling the standing crop on the wife's tract to defendant. A short time thereafter defendant purchased plaintiff's interest in the wife's tract at execution sale. The tract was fenced, but had no buildings thereon. Plaintiff testified that he intended to make this tract his homestead. Held, that it was not his homestead at the time of the execution sale, since mere intention does not make a homestead, and Rev. St. 1899, § 3616, allowed only 160 acres as homestead, which was the amount of his own tract, on which he lived until he moved away.

2. Under Rev. St. 1899, §§ 657, 660, providing that the court may amend any return in an action in affirmance of the judgment therein, the court, after judgment, may, in the exercise of a sound judicial discretion, amend or refuse to amend the sheriff's return on the summons.

3. On an application to amend the sheriff's return on a summons after judgment, where the service was claimed to have been made by leaving the summons and petition with a member of defendant's family, and the sheriff cannot remember with whom he left them, the refusal of the application was not an abuse of discretion.

4. Under Rev. St. 1899, § 570, providing that service may be made on a defendant by leaving a copy of the summons and petition at his usual place of abode with a member of his family over the age of 15 years, where the return does not show that a copy of the petition was served with the summons a judgment by default, based on such service, is void, and may be attacked collaterally, notwithstanding the judgment recites that the defendant "was duly summoned as the law directs."

Appeal from Circuit Court, Daviess County; Gallatin Craig, Special Judge.

Action by Benjamin F. Feurt against William G. Caster. From a judgment in favor of plaintiff, defendant appeals. Affirmed.

Ejectment for the northwest quarter of the northwest quarter of section 5, in township 59, range 28, in Daviess county. The petition is in the usual form, and ouster is laid as of January 2, 1900. The answer is a general denial. Upon the trial below it was admitted that Mrs. Nancy C. Feurt is the common source of title, that she was the wife of the plaintiff at the time of her death, and that she died seised of an indefeasible estate in fee simple of the land. She died in April, 1889, intestate, leaving surviving her the plaintiff, her husband, and seven living children, born of that marriage. For about 10 or 11 years after her death the plaintiff had possession of the land. It adjoined a tract of 160 acres, owned by him, and he used this land in connection with his land. There were no houses or other buildings upon this land, but it was under fence. The plaintiff resided on his 160 acres, with his family, and it was his homestead. He says he farmed this land in connection with his homestead. There was a deed of trust on his land, which was foreclosed in April, 1897, and was bought in by the bank, the cestui que trust, and at the same time he conveyed the land to a trustee for the bank. So the plaintiff lost his own land. The defendant purchased from the bank the 160 acres of land it had thus acquired from the plaintiff. Thereupon the plaintiff removed from his former homestead, and rented a farm about a mile and a half therefrom, and moved his family thereto, and has ever since resided there. Over the objection of the defendant, the plaintiff was permitted to testify that he intended to keep the land in question as his homestead, and to build thereon, and to return thereto as soon as he built, but had been financially unable so far to do so. When the plaintiff removed from the 160 acres, the defendant, the new owner, went into possession thereof in October or November, 1899. He then purchased from the plaintiff "the crop and stalk field" on the land in controversy, and went into the possession thereof. Thereafter, on December 16, 1899, the defendant became the purchaser of the right, title, and interest of the plaintiff in the land in controversy at the sheriff's sale thereof under execution, upon a judgment rendered on September 14, 1896, by the circuit court of Daviess county, in favor of Ellen Gilreath, the mother of the plaintiff's deceased wife, against the plaintiff. Thus the plaintiff claims a life estate by the curtesy in the land, which he contends was not subject to execution, because he had established his homestead thereon, and the defendant claims as assignee of his estate by the curtesy under the judgment, execution, and sale aforesaid.

The plaintiff claims that the judgment is void, and therefore may be attacked in this collateral proceeding, because the return of the sheriff on the summons issued in the case of Ellen Gilreath against him was insufficient in law to confer jurisdiction over his person, in that it simply recited: "I hereby certify that I executed the within writ in the county of Daviess, state of Missouri, on the 21st day of August, 1896, by leaving a copy of the same at the usual place of abode of Benjamin F. Feurt, with a member of his family over the age of 16 years;" while the statute requires not only that a copy of the writ shall be served upon the defendant, but also that a copy of the petition shall be served upon him, and this return does not show that a copy of the petition was so served upon the defendant in that case (the plaintiff in this case), and therefore the court never had any jurisdiction to render a judgment against the defendant in that case, and the judgment is void, and hence open to collateral attack. On the other hand, the defendant claims that the land in controversy never was the homestead of the plaintiff, and hence his estate by the curtesy was subject to execution; and, further, that the judgment aforesaid is not void, but only voidable or irregular, and that such irregularities were only subject to attack by the defendant in that case itself, and are impervious to attack in this collateral case; and also that the trial court erred in refusing to permit the sheriff to amend his return so as to show that a copy of the petition as well as of the writ was served on the defendant in that case. The defendant offered the evidence of the deputy sheriff who served the writs, which tended to show that a copy of the petition was attached to the writ, and that he served both at the same time by leaving them at the defendant's usual place of abode with a member of his family over the age of 16 years; but the deputy sheriff could not remember who such person was, or whether it was a man or a woman, but was certain that, whoever it was was over the age of 16 years. He also said he never served any other writs upon the plaintiff herein. On the other hand, the plaintiff proved by his stepdaughter, Mrs. Sinnie Cathcart, that some one (she could not say who) gave her some papers (she did not know what they were), and asked her to give them to her stepfather, the plaintiff, and that she did not do so. She also said she would be 19 years old on April 5, 1901. The writ in question was served August 21, 1896. So that she was only 14 years old at the time of the service. On motion of the defendant, however, the court struck out all of her testimony, because she did not identify the person who served the papers as being the deputy sheriff who served the writ in question. Hence her testimony is not open to consideration in this case in this state of the record. The defendant, however, contends that the sheriff had a right to make the amendment, and that evidence that the proposed amendment was untrue was inadmissible, for the reason that, if the amended return be false, the party aggrieved would have a remedy on the sheriff's bond, just as if the original return had been as the proposed amendment contemplated, and that such remedy is exclusive. Per contra, the plaintiff claims that such amendment is not a matter of right with the officer, and can only be made by leave of court granted in the exercise of a sound judicial discretion, and that it ought not to be allowed in this case, because a right of action against the sheriff on his bond is now barred by limitation. The trial court entered judgment for the plaintiff, and the defendant appealed.

Rollin J. Britton, Gillihan & Gillihan, and J. W. Peery, for appellant. Selby & Givens, for respondent.

MARSHALL, J. (after stating the facts).

1. The plaintiff had no homestead rights in the property in controversy. It was under fence, but without any house or other shelter or abiding place suitable for human habitation, and there were no visible signs on the premises to give notice to the officer charged with the execution of the writ that it was or might be the homestead of any one. It had never been the plaintiff's homestead. For years he had lived upon the 160 acres that belonged to him and that adjoined this land, and he had farmed this land; but it was in no sense his homestead. Under the statute he was only entitled to 160 acres as a homestead. Rev. St. 1899, § 3616, and the land he owned and lived on filled the complement of the law's provision for a homestead. He sold or lost his home, and two years before his curtesy in this land was sold he moved away from his former home, and rented a farm about a mile and a half therefrom. He says he intended establishing his homestead on this land, but had been financially unable to do so. Conceding all this, mere intention to establish a homestead upon a tract of land is not sufficient in law. There must be some visible occupancy and...