Goldsworthy v. Thompson

• Decision Date: 31 October 1885
• Citation: 87 Mo. 233
• Parties: GOLDSWORTHY et al., Plaintiffs in Error, v. THOMPSON.
• Court: Missouri Supreme Court

87 Mo. 233

GOLDSWORTHY et al., Plaintiffs in Error,

v.THOMPSON.

Supreme Court of Missouri.

October Term, 1885.

Appeal from Clinton Circuit Court.--HON. G. W. DUNN, Judge.

AFFIRMED.

S. H. Corn for plaintiffs in error.

As the order of publication is intended to perform the office of the service of summons and a copy of the petition, it ought to contain all of the requisites of these two instruments, so that, should the defendant see and read the order as published (and the law presumes that he does) he could safely conclude that it was or was not necessary for him to defend the action. Janney v. Spedden, 38 Mo. 395; Durossett's Administrator v. Hale, 38 Mo. 346; Bobb v. Woodward, 42 Mo. 482; Haywood v. Russell, 44 Mo. 252; State ex rel. v. Staley, 76 Mo. 158. The order of publication was insufficient and the court had no jurisdiction of the defendants in the tax suit.

Hiram Smith, Jr., and Wm. Henry for defendant in error.

It was not necessary that the order of publication should contain a description of the property against which the lien for taxes was sought to be enforced. If the enumeration of one thing can ever exclude another, the statute excludes the propriety of such description in a case of this kind, by singling out suits in partition and requiring in such suit the description of “the property sought to be partitioned.” Sec. 3494, R. S.

HENRY, C. J.

This is an action of ejectment to recover possession of lot number three, in block number thirty-two, in the town of Cameron, Clinton county. The petition is in the usual form and the answer a general denial. Defendant had judgment below and plaintiffs have brought the cause to this court on writ of error. On the twenty-third of July, 1879, the legal title to the lot was in the plaintiff, Sarah E. Goldsworthy, and defendant claims title under a deed executed by the sheriff of said county, he having sold the same on the eight teenth of October, 1880, under an execution issued on a judgment rendered in the circuit court of said county at its April term, 1880, in a cause in which the state, on the relation of the collector of said county, was plaintiff and these defendants, together with one William C. Foreman, administrator, etc., William Hollington and Sarah L. Hunt, were defendants, the object of which was to enforce a lien against said lot for state and county taxes. The validity of this deed is assailed on the ground that these defendants had no notice of that proceeding. With the petition in said cause an affidavit was filed as to the non-residence of all of said defendants except William...