Heberling v. Moudy

• Decision Date: 31 December 1912
• Citation: 247 Mo. 535,154 S.W. 65
• Parties: HEBERLING et al. v. MOUDY.
• Court: Missouri Supreme Court

154 S.W. 65

247 Mo. 535

HEBERLING et al. v. MOUDY.

Supreme Court of Missouri, Division No. 2.

December 31, 1912.

1. PROCESS (§ 105)—SERVICE—PUBLICATION.

That additional sheets are sent out as a part of a newspaper does not invalidate a publication of service appearing in the additional pages, though sometimes such additional pages were not sent out to other newspapers or free subscribers.

2. NAMES (§ 16)—IDEM SONANS.

The names "Heberling" and "Herberling" are not idem sonans, so that a service by publication against the latter, instead of the former, was insufficient.

Appeal from Circuit Court, Reynolds County; Jos. J. Williams, Judge.

Action by Henry Heberling and others against William Moudy. From a judgment for plaintiffs, defendant appeals. Affirmed in part and reversed and remanded in part, with directions to enter judgment for defendant.

Z. C. Smith, of Piedmont, and J. B. Daniel, of Centerville, for appellant. Arthur T. Brewster, of Poplar Bluff, and Sam M. Brewster, of Hillsboro, for respondents.

BLAIR, C.

This is an appeal from a judgment for plaintiffs in the circuit court of Reynolds county in an action to quiet the title to section 27, township 29, range 2 east. The petition is in the usual form under section 2535, R. S. 1909. The answer admits defendant's claim of title, avers his ownership, denies all unadmitted allegations of the petition, and sets up the 10-year statute of limitation. Plaintiffs' title rests upon a tax deed recorded February 10, 1881, and defendant claims under separate tax deeds to each quarter of section 27, all executed November 25, 1896, and each of them reciting a judgment of the circuit court against Heberling and others for taxes on the quarter section conveyed and a sale under such judgment. The service in these suits was by publication, Heberling et al. being nonresidents, and no objection is made to the form of the publication, except as to that in the suit affecting the southeast quarter, in which the publication ran against Herberling instead of Heberling. Plaintiffs attacked the sufficiency of all the notices on the ground they were published in a supplement to the "Centerville Reformer," and not in the paper itself, and also contend the publication in the case affecting the southeast quarter was insufficient by reason of the fact Heberling's name was misspelled therein. The testimony of the editor and publisher of the Centerville Reformer was to the effect that the so-called "supplement" consisted of an additional sheet or sheets folded in with the paper and sent out with it, as a part of it, with each issue and to all subscribers. On being somewhat rigidly examined by plaintiffs' counsel, the witness admitted he could not then (15 years after the event) swear a supplementary sheet or sheets went out with each copy, though he testified it was his intent and purpose to so send them, as much so as any other part of the paper. He also admitted there were occasions on which the number of "supplements" might have been a little less than that required, and that on such occasions he sometimes omitted the "supplements" in copies of the paper sent to other newspapers. There was no evidence any such omissions occurred during the time the orders of publication involved in this case were running. The whole of the testimony shows that the so-called "supplement" was simply a part of the paper, an addition made necessary by the large number of orders of publication being published; that it was circulated with the paper as a part of it and went to all subscribers except, when the number was a little...