Herndon v. Hawkins

• Decision Date: 30 April 1877
• Citation: 65 Mo. 265
• Parties: HERNDON ET AL., APPELLANTS v. HAWKINS ET AL.
• Court: Missouri Supreme Court

65 Mo. 265

HERNDON ET AL., APPELLANTS

v.HAWKINS ET AL.

Supreme Court of Missouri.

April Term, 1877.

Appeal from Ozark Circuit Court.--HON. J. B. WOODSIDE, Judge.

E. Y. Mitchell for appellants.

The court erred in excluding the deed from the sheriff to Sherwood and Julian. There was no house at the county seat when the judgment was rendered. The county court had ordered the sheriff to select a suitable place for holding the courts, until buildings could be erected at the county seat. The sheriff swore that, in obedience to this order, he selected the place, and reported the same to the county court, and the judgment was rendered at that place. The record also shows that the court, at which the judgment was rendered, had been regularly adjourned from the county seat to the place where it was rendered. The court having passed on the matters in issue, when the judgment was rendered, the same cannot be attacked collaterally. Kane v. McCown, 55 Mo. 181; Bouldin v. Ewart, 63 Mo. 330. The county court having ordered the sheriff to provide a place for holding court, it will be presumed that that court properly exercised the authority conferred by law, see Gen. Stat. 224, § 36. None but the most cogent reasons should induce this court to depart from that conservative principle, which the most eminent jurists have ever observed, when the jurisdiction of tribunals possessed of every appearance of authority and clothed with every semblance and insignia of power, is collaterally called in question. State v. Douglass, 50 Mo. 593. When a want of jurisdiction actually exists in a domestic tribunal of general jurisdiction, and is not apparent upon the record, the appropriate mode of ascertaining it is by writ of error, and, until it is so ascertained, the judgment imports absolute verity. Granger v. Clark, 22 Me. 128. See also, Galpin v. Page, 18 Wall. 350; Hahn v. Kelly, 34 Cal. 392; Huxley v. Harrold, 62 Mo. 516; Hunter v. Ferguson, 13 Kans. 462.

Waddill & Crandell for respondents.

The judgment recited in the deed offered in evidence by appellants, was rendered at a place unknown to the law, and different from that fixed by law, viz: “Both the circuit and county courts in the several counties in this State shall be held at the county seat of each respective county.” Laws 1866, p. 83, § 1.

NORTON, J.

This is an ejectment suit instituted in the circuit court of Ozark county against the defendants, as the heirs of S. H. Hawkins, for the recovery of the possession of certain lands described in the petition. The answer of defendant denies the right of plaintiffs to the possession of said lands, and alleges that the sheriff's deed under which plaintiffs claim, was a false and fraudulent deed; that the judgment and execution against one Crawford Brixley, under which said land was sold, was a false, fraudulent and void judgment; that the order of publication issued and published, required said Crawford Brixley to appear before the circuit court of Ozark county on the 4th Monday in February, 1865, at the court house in Gainsville, the county seat of said county; that there was no term of the circuit court to be held at Gainsville at that time, as plaintiffs well knew; that on the 31st day of August, 1865, at a term of the court held at Spring Creek school house, in Ozark county, an interlocutory judgment was entered against said Brixley, and, at a subsequent term of said court, held at the house of S. I. Forest, in said county, the plaintiff, Herndon, fraudulently obtained and entered upon the records of said court a final judgment against said Crawford Brixley for the sum of ten thousand dollars; that upon this judgment a special execution was issued, and the lands sued for were sold, and plaintiffs purchased the same for the sum of $30, and received a sheriff's deed; that one S. H. Hawkins, the ancestor of defendants, bought, in his life time of said Brixley, all the lands in dispute, and received a deed for the same; that said Brixley had a perfect title to said lands, and prays the court to declare the sheriff's deed, and the proceedings on which it is based, null and void.

The allegations of the answer were denied by replication, and upon a trial of the same, the court having refused to admit in evidence the sheriff's deed to plaintiffs for said lands, they took a non-suit with leave to move to set the same aside. An unsuccessful motion was in due time made to set aside the judgment of non-suit and grant a new trial, and the cause is brought to this court on appeal. The chief error complained of is as to the action of the court in refusing to admit the sheriff's deed offered by plaintiffs in evidence. The history of the case, as shown by the record, discloses the following facts: In September, 1864, S. C. Herndon instituted his suit by attachment against one Crawford Brixley, upon which was issued a writ of attachment, including a clause summoning the defendant to appear and answer the action at the next term of the circuit court of Ozark county, to be held in Gainsville, on the 4th Monday in February, 1865. Upon the affidavit of plaintiff that the defendant had absented himself from his usual place of abode in this State, an order of publication was made and published in the Springfield Journal, notifying defendant of the pendency of the suit and the character of it, and also notifying him to appear at the next term of the circuit court to be held in Gainsville on the 4th Monday in February, 1865. This term of court appears not to have been held, as the record seems to be silent in regard to it. The regular August term, 1865 was, upon the order of ______ Boyd, Circuit Judge, adjourned by proclamation made by the sheriff on the first day of said August term from Gainsville, which was the county seat, to Spring...