Givens v. Harlow

• Decision Date: 31 May 1913
• Parties: GIVENS v. HARLOW et al.
• Court: Missouri Supreme Court

158 S.W. 355

GIVENS v. HARLOW et al.

Supreme Court of Missouri. Division No. 1.

May 31, 1913.

Rehearing Denied June 17, 1913.

1. PROCESS (§ 137) — SERVICE — RETURN — SUFFICIENCY.

Under Rev. St. 1909, § 1778, providing that proof of service of process in a sister state by an officer thereof shall be by affidavit of the officer, stating the time and manner of service, made before the clerk or judge of the court of which the affiant is an officer, proof of service by an officer of a sister state, as shown by the affidavit of the officer, made before a deputy clerk of court, is insufficient.

2. PROCESS (§ 164) — SERVICE — RETURN — AMENDMENTS.

A circuit court of this state may not permit an officer of a sister state, serving process, to amend his return after he has ceased to act as an officer.

3. JUDGMENT (§ 490) — VALIDITY — COLLATERAL ATTACK.

A judgment which shows on its face that it was rendered on constructive service in an attachment suit, and which adjudges that plaintiff recover from defendant, not appearing, a specified sum, being the amount of the note sued on and interest, and that execution issue therefor, is a general judgment, and void, and is subject to collateral attack.

4. JUDGMENT (§ 17) — GENERAL JUDGMENT — CONSTRUCTIVE SERVICE OF PROCESS.

Service of process issued by a court of the state, made in a sister state, is but constructive service, and does not authorize a general judgment.

5. JUDGMENT (§ 490) — GENERAL JUDGMENT — VALIDITY.

A general and personal judgment, rendered on substituted service on defendant, who defaulted, is invalid; and the mere fact that the land attached in the action was sold did not render the judgment irregular only.

6. JUDGMENT (§ 17) — SERVICE OF PROCESS.

Under Rev. St. 1909, § 2316, providing that the writ of attachment and petition shall be served on defendant as an ordinary summons, defendant in an attachment suit must be personally served, or there must be a valid substituted

service, or the court cannot render judgment, though the property has been attached.

Appeal from Circuit Court, Daviess County; Francis H. Trimble, Judge.

Action by Nathaniel S. Givens against Edmond J. Harlow and others. From a judgment for defendants, plaintiff appeals. Reversed and remanded, with directions to enter judgment for plaintiff.

Dudley & Selby and Thos. H. Hicklin, all of Gallatin, for appellant. Gillihan & Gillihan and John C. Leopard, all of Gallatin, for respondents.

GRAVES, J.

This is an action in partition. James Harlow died in 1882, leaving as his heirs Edmond J. Harlow, Wilmer G. Harlow, James Samuel Harlow, and John W. Harlow, the defendant herein, and Joseph P. Harlow, Henry L. Harlow, and a widow, Huldah J. Harlow, who are not named as defendants. It appears that the estate of James Harlow had been previously partitioned, and in that proceeding 100 acres of land was set off to the widow as and for her homestead and dower rights, and adjoining this was also 20 acres, which was used by the widow, which was likewise not partitioned. Thus there is involved in this case 120 acres of land formerly belonging to James Harlow. The widow died in July, 1908, and this suit followed in November, 1908. In the petition plaintiff claims a two-sixths interest in the whole tract of 120 acres. In other words, he claimed to be the owner of the two interests which went by descent to Joseph P. Harlow and Henry L. Harlow. By the judgment plaintiff only recovered the one-sixth interest formerly belonging to Henry L. Harlow in the 20-acre tract. This he recovered under and by virtue of a deed from Henry L., dated in October, 1908. The deed covered the entire 120 acres, but the trial court held that the interest of Henry L. had previously passed by a sheriff's deed, and that plaintiff's deed conveyed no interest in the 100-acre part of the tract. Plaintiff now admits that he is not entitled to the interest of Joseph P. Harlow, and admits that such interest belongs to Edmond J. Harlow, as found by the decree nisi. It thus appears that the sole controversy here is as to who owns the former interest of Henry L. Harlow in the 100-acre tract first set apart to the widow. This interest was adjudged nisi to Wilmer G. Harlow, by reason of the sheriff's deed. Counsel for the plaintiff in their statement of the case thus describe the origin of this sheriff's deed:

"The origin of this sheriff's deed is as follows: On August 24, 1891, the firm of Gillihan & Brosius instituted suit by attachment against H. Lindsey Harlow, who was then a resident of Harvey county, Kan., causing summons in the ordinary form to issue to the sheriff of Harvey county, Kan., attaching to the original summons as well as to the copy a certified copy of the petition filed in the case. This petition was one in the usual and ordinary form on a note for $74, which had been given by the defendant in that suit to the plaintiffs, Gillihan & Brosius. On the same day plaintiffs filed their affidavit in attachment, alleging as the ground therein the nonresidence of defendant, also their bond in attachment, and caused to be issued to the sheriff of Daviess county, Mo., an attachment writ, and this writ is returned by the sheriff of Daviess county, Mo.; he stating in his return that he had levied on above 100 acres of land and filed in the recorder's office of said county an abstract of the attachment writ, but there is nowhere in his return any statement that he has given notice to the tenants on said land, at least 10 days before the return day of the writ, nor at any other time, giving the names of the tenants in his return, as then required by clause 3 of section 543, R. S. 1889, and now by section 2316, R. S. 1909, clause 3, nor as a matter of fact was anything of that kind done, nor does the record show it. The summons and copy of petition issued to the sheriff of Harvey county, Kan., as we have stated, was simply an ordinary summons, and the petition was the ordinary petition on a note, except that the copy attached shows petition was verified before W. H. McClung, clerk, and original is not verified. There was no copy of the summons and writ of attachment, no copy of the bond and affidavit in attachment, nor any other fact therein to notify the defendant that a suit by attachment had been commenced against him and his land levied on to satisfy the claim of plaintiffs. The sheriff of Harvey county, Kan., in making or attempting to make the proof of his service, has the deputy district clerk certify to the return, instead of the clerk, as section 2029, R. S. 1889, then required, and as is now required by section 1778, R. S. 1909. More than 17 years after this unquestionable void service and return, the circuit court of Daviess county, Mo., without any notice to the plaintiff in this case or the defendant in that case, assumes the right to permit this return to be amended, orders the cause of Gillihan & Brosius v. H. Lindsey Harlow to be redocketed, states that E. E. Pollard, sheriff of Harvey county, Kan., asks leave to file additional amended return of service, grants leave to file additional amended return of service, grants leave to him to do so, states that he does do so and files the same in said cause, and continues the cause to pass off the docket, and this purported amended return is now sought to be relied on in this case to cure the admitted invalidity of the former one. The absolute invalidity of this amended return and the order purporting to permit it we hope to show later on in the course of the brief filed in this cause, and at this time simply call the attention of this court to one or two facts in connection with it. In the first place, we say the court had no lawful authority to permit it, and, even if such was the case, it does not comply with the terms of the invalid order permitting it. The order purports to permit E. E. Pollard, sheriff of Harvey county, Kan., to file, etc., and further on states that E. E. Pollard, sheriff,...