Grant v. King

• Decision Date: 31 January 1861
• Citation: 31 Mo. 312
• Parties: GRANT et al., Defendants in Error, v. KING, Plaintiff in Error.
• Court: Missouri Supreme Court

31 Mo. 312

GRANT et al., Defendants in Error,

v.KING, Plaintiff in Error.

Supreme Court of Missouri.

January Term, 1861.

1. In an action under the statute which prescribes the mode of proceeding in quieting title, (R. C. 1855, p. 1241, § 62-3,) actual notice is required in order to give the court jurisdiction; notice by publication to a non-resident is not sufficient.

Error to Linn Circuit Court.

Lander & Harris, for plaintiff in error.

I. The statute on which this proceeding is based (R. C. 1855, p. 1241, § 62-3) provides that the person against whom such a proceeding as this is instituted may be summoned, &c., and upon the return of the order of notice, duly executed, &c. The whole tenor and spirit of the act seems to require a personal service of the notice, not a mere constructive notice by publication.

II. The proceeding is against a non-resident of the state, and, under the constitution of the United States and the laws of Congress, he has an election to sue a citizen of this state, either in the state courts or in the federal courts. To enforce the provisions of this statute against non-residents, would be to deprive him of this right of election. The courts in Massachusetts, from whose statutes ours was taken, so construe this law. (Macomber v. Jaffray, 4 Gray, Mass., 82; same case, 17 U. S. Dig. 492, quieting title.)

NAPTON, Judge, delivered the opinion of the court.

The proceeding under the sixty-second and sixty-third sections of the sixth chapter of our practice act is a novel and somewhat anomalous one, and this is, I believe, the first or second case in which this court is called upon to give it a construction. In this case the petition states that the plaintiffs are the owners in fee of a quarter section of land, (describing it,) and are lawfully in possession; that they are credibly informed and believe that the defendant makes some claim adverse to their own; that he is a non-resident of the state, and therefore an order of publication is asked, summoning him to show cause why he should not bring an action to try his alleged title, if any, to said land.

This petition was demurred to, on the ground that the statute only applied to resident defendants, who could be notified in the usual mode pointed out by law, and this presents the only question in the case.

The sixty-second section provides that the court shall “order notice to be given to the defendant,” and upon return of such “order of notice,” duly executed, the court shall proceed...