Graves v. Smith
| Decision Date | 14 June 1919 |
| Citation | 213 S.W. 128,278 Mo. 592 |
| Parties | GEORGE A. GRAVES, Trustee for EUGENE H. MOORE and IONE L. MOORE (Now MRS. IONE WADLEIGH), v. J. W. SMITH and MAE SMITH, Appellants |
| Court | Missouri Supreme Court |
Appeal from Jasper Circuit Court. -- Hon. D. E. Blair, Judge.
Reversed and remanded (with directions).
Owen & Davis for appellants.
(1) The judgment rendered in the case of Graves, Trustee, against J W. Smith, is void, and likewise the execution issued thereunder, the sheriff's sale thereunder, and the sheriff's deed under which plaintiff claims and asserts title, for the reason that the court had no jurisdiction over the person of the defendant in that suit. (a) The order of publication issued in said cause runs in the name of J. W Smith -- the record title to the lands in question being in John W. Smith -- and is, therefore, void. Notice by publication, in order to authorize a valid judgment, must run in the name of the defendant as it appears of record. White v. Gramley, 236 Mo. 647; Railroad v Norris, 153 Mo.App. 667. (b) The order of publication issued in said cause does not follow the affidavit of F. M. Cummings, which alleges that "the aforesaid J. W. Smith has left the State of Missouri and is now a nonresident of the State of Missouri," and upon which it is based, but follows one of the grounds of attachment, to-wit, "that the defendant has absented himself from his usual place of abode in this State so that the ordinary process of law cannot be served upon him," and is, therefore, void. An order of publication must show upon its face the true grounds upon which it is based; a false recital renders it void. Tooker v. Leake, 146 Mo. 431; Harness v. Cravens, 126 Mo. 233; Kunzi v. Hickman, 243 Mo. 116; Parker v. Burton, 172 Mo. 85; Crossland v. Admire, 149 Mo. 656. (c) The order of publication issued in said cause, if based upon the affidavit of attachment, is void, because the affidavit of F. M. Cummings, filed April 16th, is inconsistent with and destroys the affidavit of attachment as a basis for an order of publication. Mansur v. Insurance Co., 136 Mo.App. 726; Hinkle v. Loveless, 204 Mo. 219; Harness v. Cravens, 126 Mo. 247. (d) The order of publication did not notify defendant that his lands had been, or were about to be, attached; or that he was called upon to defend an attachment suit, and is, therefore, void. It failed to notify him of the general nature and object of the suit. Sec. 1770, R. S. 1909. (e) The certified copy of the petition and lease thereto attached, the affidavit, and the summons served upon defendant in the State of Texas, did not notify him that he was called upon to defend an attachment suit, or that his property would be subjected to the lien of any judgment authorized upon such process. It was essential to the jurisdiction of the court that a certified copy of the petition and writ be served upon the defendant, as provided in Section 2316, or as provided in Section 1778, R. S. 1909; or that he be notified by publication, as provided in Section 1770. Moss v. Fitch, 212 Mo. 484; Given v. Harlow, 251 Mo. 231; Lasere v. Rochereau, 84 U.S. 437; 1 Shinn on Attachment, secs. 5, 217; 4 Cyc. 814. The remedy by attachment is purely statutory, and it is essential to the vadility of a judgment rendered in such a case that all of the essential requirements of the statute be substantially complied with. 8 Corpus Juris, sec. 121, p. 88; 1 Shinn on Attachment, sec. 8; Lackland v. Garesche, 56 Mo. 267; Hauser v. Murray, 256 Mo. 89; Hargadine v. Van Horn, 72 Mo. 370; Bryant v. Duffey, 128 Mo. 18. (f) The return of the sheriff to the writ of attachment does not show how he notified the tenant on the lands attached of the suit, whether verbally or in writing. It was essential to the jurisdiction of the court that the tenant of the land attached be served with notice of the suit, as provided in Sec. 2316, R. S. 1909. Siling v. Hendrickson, 193 Mo. 365; Walter v. Schofield, 167 Mo. 537; Miner's Bank v. Kingston, 204 Mo. 687; Williams v. Dittenhofer, 188 Mo. 134; Allen v. Welch, 125 Mo.App. 278; Gates v. Tusten, 89 Mo. 21. (2) The judgment rendered in the attachment suit is a general judgment, and is therefore void, and likewise all proceedings had thereunder. Priest v. Capitain, 236 Mo. 456; Givens v. Harlow, 251 Mo. 231. (3) The execution issued on the judgment in the attachment suit is a special execution and is therefore void. Givens v. Harlow, 251 Mo. 231.
George Hubbert for respondent.
(1) As against any collateral question concerning the validity of the judgment in attachment and for execution against the land in question in this case, the attachment of the land by sheriff, under regular writ, based on bond with affidavit showing cause, followed by abstract duly filed for record, proved by the sheriff's return of the attachment and of the fact of due notice to the actual tenant, gave the court jurisdiction to enforce the attachment lien, and no defect in subsequent proceedings could affect the force of the sheriff's sale and deed to respondent as the purchaser under that judgment. Randall v. Snyder, 214 Mo. 32; Williams v. Lobban, 206 Mo. 409; Shea v. Shea, 154 Mo. 605; Johnson v. Gage, 57 Mo. 165; Freeman v. Thompson, 53 Mo. 194; Hardin v. Lee, 51 Mo. 244; Thompson v. Paddock, 148 Mo.App. 153; Cooper v. Reynolds, 10 Wall. (77 U.S.) 308, 19 L.Ed. 931; Payne v. Moreland, 15 Ohio 435, 45 Am. Dec. 585. (2) Even if the judgment in the attachment case were only and merely general in its form, and there had been no regular service by publication or summons to defendant, the judgment and writ of execution being really and specially against the attached property, the resulting sale and deed are not open here to collateral attack; but on the contrary, the issue of special execution and sale thereunder, pursuant to the attachment and lien thereby acquired, were valid in execution of the judgment, there was nothing to imply abandonment or waiver of the lien. Burnett v. McCluey, 92 Mo. 236; Hagerman v. Sutton, 91 Mo. 526; Freeman v. Thompson, 53 Mo. 194; Hardin v. Lee, 51 Mo. 241; Massey v. Scott, 49 Mo. 278; Johnson v. Holly, 27 Mo. 594; State ex rel. Vogle, 14 Mo.App. 190; Clark v. Holliday, 9 Mo. 711. (3) But, in truth, the judgment in attachment was expressly for execution against the attached property, and any expression indicating such intent stamped the judgment as special in its nature, and that was sufficient, for neither the condition of the record, nor the status of the parties, nor the language of the judgment suggest any power or purpose of the court to enter merely a general judgment. Johnson v. Holly, 27 Mo. 504; R. S. 1909, secs. 2330, 2331; 6 C. J. p. 484, sec. 1144. (4) This court's uniform decisions in Hardin v. Lee, 51 Mo. 241, and subsequent cases, holding that a judgment based on attachment conferring jurisdiction of the land attached and executed through special execution and sheriff's deed, cannot be collaterally attacked, has become a rule of property which this court never intended to disturb, and it should be protected by repudiation of the inconsistent ruling in White v. Gramley, 236 Mo. 647. Dunklin Co. v. Dunklin Court, 23 Mo. 449; Reed v. Ownby, 44 Mo. 204; Dunklin v. Chouteau, 120 Mo. 577; Lumber Co. v. Craig, 248 Mo. 319, 331. (5) The first affidavit, containing, as it did, cause for both attachment under Sec. 2294, sub-secs. 3 and 4, and publication, under Sec. 1770, both processes might well be founded thereon; and the second affidavit, by which the former affidavit was supplemented, was a good foundation for summons in Texas under Sec. 1778. Avery v. Good, 114 Mo. 290; Lumber Co. v. Carroll, 255 Mo. 363. (6) The service of the writ of attachment, as proved by the sheriff's return, was good and regular in form and substance, in exact accordance with the statute specifying what it should express, as to the "fact" of notice to tenant and statement of his "name," in addition to the statement of all other acts prescribed for effective levy of the writ on land. R. S. 1909, sec. 2316, sub-div. 3. (7) The fact that publication or summons was after jurisdiction had been acquired over the property by execution of the writ of attachment, was immaterial and did not invalidate or defeat the exercise of jurisdiction. Tufts v. Volkening, 122 Mo. 631. (8) The suit, publication and service of summons in Texas, as against John Smith by the name of J. W. Smith, to which he answered when admitting his identity on the witness stand, and by which he was known as appears by the evidence, was good for all purposes of the attachment proceeding, judgment, sale and deed, even if publication was necessary. Mosely v. Reily, 126 Mo. 127; Elting v. Gould, 96 Mo. 541; Martin v. Barron, 37 Mo. 300; Durfee v. Moran, 57 Mo. 374; Howard v. Brown, 197 Mo. 36, 47; Simmons v. Mo. Pac. Ry. Co., 19 Mo.App. 545; Johnson v. Page, 57 Mo. 165.
OPINION
In Banc
Suit of the purchaser under an execution sale to set aside an alleged fraudulent conveyance of the judgment debtor.
In 1910 defendant John W. Smith (J. W. Smith) purchased a farm in Newton County, Missouri, and placed his father in possession thereof as tenant, care for the property being the consideration for its use. In June, 1913, John W. Smith mortgaged this land by two deeds of trust, one for $ 650 with interest, payable five years from date; the second for $ 65 with interest, payable to George B. Hulse, maturing at a like date, naming Horace Ruark as trustee, and containing power of sale for foreclosure by the trustee on default of payment.
Defendant Smith, having become indebted to George Graves as guarantor of a theatre lease, and having refused to pay said debt, said Graves, on January 21, 1914, sued out a...
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