Higgins v. Beckwith

• Decision Date: 22 December 1890
• Citation: 14 S.W. 931,102 Mo. 456
• Parties: HIGGINS v. BECKWITH.
• Court: Missouri Supreme Court

14 S.W. 931

102 Mo. 456

HIGGINS v. BECKWITH.

Supreme Court of Missouri.

December 22, 1890.

RECITALS IN JUDGMENT — JURISDICTION — APPEARANCE.

1. Rev. St. Mo. 1879, § 3562, provides for service on a non-resident by some person competent to testify by whose affidavit or deposition the service is to be proved. The record disclosed a service by a sheriff of another state not proved by his affidavit or deposition. Held that a general recital in the judgment that notice "was duly served on the defendant" is limited to the specific method of service disclosed by the record, and that being insufficient no jurisdiction is acquired.

2. An entry of record, that "the cause be continued by agreement," is not sufficient to show an appearance by defendant. BARCLAY, J., dissenting.

Error to circuit court, Sullivan county; G. D. BURGESS, Judge.

Action to quiet title, the defendant being a non-resident, and the plaintiff in possession. The petition and other proceedings in the cause are as follows: "Alfred J. Higgins, Plaintiff, against Warren Beckwith, Defendant. Now comes the above-named plaintiff, Alfred J. Higgins, and says that he is the owner in fee of the following described real estate lying and being in Sullivan county, Missouri, to-wit: Thirty acres off of the north side of the north-east quarter of the north-west quarter, and the west half of the north-west quarter of section number one in township number sixty-three of range number twenty-two, and he is in the possession of the same; and he further avers that he is credibly informed and believes that the defendant, Warren Beckwith, makes some claim to said real estate adverse to the estate of your petitioner, the plaintiff herein. He further avers that said defendant, Warren Beckwith, is a non-resident of the state. Plaintiff therefore prays the court for an order that he, the said defendant, Warren Beckwith, may be summoned to show cause why he should not bring an action to try the alleged title to said real estate, if any he has or claims. [Signed] A. J. HIGGINS, Plaintiff. By A. C. EUBANKS, Attorney. Sworn to by A. C. EUBANKS, Attorney for Plaintiff, May 8, 1885." And afterwards on May 25, 1885, an order was made by said circuit court on said petition, as follows: "Alfred J. Higgins, Plaintiff, against Warren Beckwith, Defendant. Now on this 25th day of May, 1885, the above-entitled cause being called for hearing, and the matters and facts alleged in the petition filed by the plaintiff in this cause being duly considered, and after hearing the testimony in said cause, it is ordered and adjudged by the court that the prayer of plaintiff's petition be granted, and it is further ordered and adjudged by the court that the defendant, W. Beckwith, be notified and summoned to be and appear before the circuit court of Sullivan county, Missouri, to be begun and held at the court house, in the city of Milan, in said county, on the 16th day of November, 1885, and on or before the 3d day of said term, if the term shall so long continue; if not then before the end of the term show cause, if any he has, why he should not be compelled to commence an action against the plaintiffs or their legal representatives to try the alleged title, if any he has, to the following described real estate, to-wit: Thirty acres off of the north side of the north-east quarter of the north-west quarter, and the west half of the north-west quarter, of section one (1) in township sixty-three of range twenty-two, (22,) it being the same land as that mentioned in the petition filed herein; and, if the said defendant William Beckwith makes default, he to be forever barred from having or claiming any right to said real estate above described." In pursuance of said order, by notice, on the 2d day of October, 1885, a duly-certified copy of said order was issued and delivered to plaintiff's attorney for service, and on the 5th day of October, 1885, said certified copy of order of notice was returned executed, which said return of service is in words and figures following: "State of Iowa, county of Henry — ss.: I hereby certify that I executed the within order of court by delivering a true copy of the same to the within-named Warren Beckwith, at the county and state aforesaid, on the 5th day of October, 1885. [Signed] JAMES DWYER, Sheriff of Henry County, Iowa." And afterwards — to-wit, on the 21st day of November, 1885, it being the sixth day of November term of said court — the following proceedings were had: "Alfred J. Higgins, Plaintiff, against Warren Beckwith, Defendant. Now, on this 21st day of November, 1885, it is ordered by the court that this cause stands continued until the next term of this court." And afterwards — to-wit, on the 22d day of May, 1886, it being the seventh day of May term of said court — the following proceedings were had, to-wit: "A. J. Higgins, Plaintiff, against Warren Beckwith, Defendant. Now on this 22d day of May, 1886, it is ordered by the court that this cause be continued by agreement." And afterwards — to-wit, on the 22d day of November, 1886, it being the seventh day of November term of said court — the following proceedings were had, to-wit: "A. J. Higgins, Plaintiff, against Warren Beckwith, Defendant. Now on this 22d day of November, 1886, it is ordered by the court that this cause stands continued." At the May term, 1887, of the circuit court, the following final judgment was rendered in the cause: "Now on...