Freeman v. Rollins

• Citation: 45 Mo. 315
• Parties: FENWICK FREEMAN et al., Appellants, v. WILLIAM ROLLINS, Respondent.
• Decision Date: 31 January 1870
• Court: United States State Supreme Court of Missouri

45 Mo. 315

FENWICK FREEMAN et al., Appellants,

v.WILLIAM ROLLINS, Respondent.

Supreme Court of Missouri.

January Term, 1870.

Appeal from Third District Court.

Ewing & Smith, and Baker & Ellis, for appellants.

J. F. Hardin, for respondent.

CURRIER, Judge, delivered the opinion of the court.

This is a suit in ejectment, and involves the validity of an order for publication of notice in a cause wherein the disputed premises were attached on mesne process, and subsequently sold under the execution issued upon the judgment therein rendered. The plaintiffs contest the title acquired under the sale on the ground that the judgment was rendered in pursuance of an unauthorized publication of notice to the defendant in that suit.

The attachment suit was commenced during a session of the Polk County Circuit Court; the court, at the same session, awarding an order of publication founded upon an affidavit showing that the defendant therein was a non-resident. The plaintiffs insist that this action of the court granting the order of publication was wholly without authority, and therefore void; and that the court could alone grant such order at the return term of the writ. This position is supposed to be sustained by the provisions of section 23, chapter 12, of the Revised Statutes of 1855, which were in force at the time the order was granted.

The statute referred to provides for orders of publication in two classes of cases--one where the order is founded on the affidavit showing certain facts; and the other where the order is founded upon the non-appearance of the defendant at the return term of the writ, his property having been attached, and it appearing that he could not be found. In this latter class of cases no affidavit is required, and according to the construction of the plaintiffs it is only in this class of cases that the court is authorized to order publication of notice--the clerk of the court alone, according to this view, being authorized to make the order where it is founded upon an affidavit. The result of this interpretation would be that, where the order is founded on an affidavit it could not be awarded in term time at all; for the clerk has no authority whatever in the premises, except in the vacations of the court. However this view of the provision in question may accord with the grammatical construction of the section, it evidently does not express the intention of the legislature in enacting it. The authority of the clerk, in granting orders,...