Himmelberger-Harrison Lumber Co. v. Jones

• Decision Date: 30 March 1909
• Parties: HIMMELBERGER-HARRISON LUMBER CO. v. JONES et al.
• Court: Missouri Supreme Court

119 S.W. 366

220 Mo. 190

HIMMELBERGER-HARRISON LUMBER CO. v. JONES et al.

Supreme Court of Missouri, Division No. 2.

March 30, 1909.

Rehearing Denied May 18, 1909.

1. PROCESS (§ 103)—SERVICE—PUBLICATION—RETURN.

Return of a summons issued against a non-resident of the county "not found," before the return day, is insufficient to sustain an order for publication.

2. QUIETING TITLE (§ 51)—REQUEST FOR ADJUDICATION.

Where, in a suit to quiet title, plaintiff's prayer requested that the court try and determine the estate of the plaintiff and defendants and adjudge by its decree the nature and character of the interest of the parties litigant in the proceeding, as authorized by Rev. St. 1899, § 650 (Ann. St. 1906, p. 667), it was proper for the court, without request or prayer on defendants' part, to adjudge them to be the owners of the land in controversy on plaintiff's failure to establish its claim.

3. QUIETING TITLE (§ 51)—EVIDENCE OF TITLE.

Where, in a suit to quiet title, it was agreed that J. was the common source, and defendants' allegation that they were the widow and heirs at law of J. was not denied by replication, the court, on plaintiff's failure to establish its claim, properly adjudged that defendants were the owners of the land in controversy without proof of their title.

Appeal from Circuit Court, Stoddard County; J. L. Fort, Judge.

Action by the Himmelberger-Harrison Lumber Company against Henry Jones and others. Judgment for defendants, and plaintiff appeals. Affirmed.

This suit was instituted in Stoddard county, Mo., on the 2d day of January, 1905, under the provisions of section 650, Rev. St. Mo. 1899 (Ann. St. 1906, p. 667), by which it was sought to ascertain and determine the title of the respective parties to this suit, plaintiff and defendants, to the following described land: The north half of section 23, township 27, range 12 east, situate in Stoddard county, Mo.

The petition alleged that the plaintiff was the owner of the land in controversy, and had been in the open, notorious, hostile, continuous, and adverse possession of it under a bona fide claim of title for more than 10 years prior to the bringing of this suit, and it was also asserted that during all that time the plaintiff exercised all the acts of ownership over such land of which it was susceptible. The defendants, Sarah E. Jones, Walter Jones, John Jones, Letha Deneen, Alice Jones, and Maud Brewster entered their appearance in said suit on the 6th day of March, 1905, and filed their joint answer. The answer was as follows: "Now come the above-named defendants herein, and, for their answer to the petition in this case, state as follows, to wit: That Sarah E. Jones is the widow of Henry Jones, deceased, and Walter Jones, John Jones, Letha Deneen, Alice Jones, and Maud Brewster are his children and heirs at law. That defendants admit the incorporation of plaintiff, and that they claim title in fee to the land described in the petition, which is adverse to the interest claimed by plaintiff in the same; and that, except as hereinbefore admitted, they deny each and every allegation of fact contained in the petition. Wherefore, having fully answered, defendants pray to be dismissed with their costs." On these issues the case proceeded to trial in the court below. On the trial it was agreed by and between the parties that Henry Jones was the common source of title.

Plaintiff next offered a sheriff's deed from J. R. Barham, sheriff of Stoddard county, Mo., to Isaac and John H. Himmelberger, dated September 16, 1891, and recorded October 2, 1891, in the land records of Stoddard county, in Book 2, p. 17, conveying all the right, title, and interest of Henry Jones in and to the lands in controversy. No objection was made to the introduction of this sheriff's deed. It is in the usual form of sheriff's deed under special execution for the enforcement of tax judgments. It is regular, and makes all necessary and statutory recitals on its face. It was based upon a judgment obtained by the state on the relation of Joseph Howell, collector of Stoddard county, against Henry Jones for back taxes on the land in controversy. Defendants, however, contend that the judgment upon which this sheriff's deed was based is void for want of power in the circuit court of Stoddard county to make the order of publication bringing the defendant Jones into court. It was agreed on the trial that the plaintiff in this case holds by mesne conveyance whatever title there was conveyed by this sheriff's deed to Isaac and John H. Himmelberger. This was all of the record testimony offered on behalf of the plaintiff. There was other testimony offered by the plaintiff in support of the allegations of adverse possession by the plaintiff and laches charged to the defendants.

The defendants, for the purpose of impeaching the sheriff's deed offered in evidence by the appellant, offered: (1) The summons issued in the case of State ex rel. Joseph Howell, Collector, v. Henry Jones, with the sheriff's return and other indorsements made thereon. And to this offering of the summons and return the appellant objected, for the following reasons: First, the circuit court's action in making the order of publication was a judicial determination by the judge of the circuit court of Stoddard county as to whether or not the defendant named in the summons, Henry Jones, could not be found in the state of Missouri; second, that upon that judicial determination the order of publication was issued, and that the judicial determination of that question and the order of the court itself making the order of publication could not be attacked in this collateral way; that the written issues made in this case would not permit an assault upon the judgment of a court of general jurisdiction in the collateral way, and that such offering was incompetent in this proceeding. Thereupon the court remarked: "The objections of the defendant to the sheriff's deed will be sustained, because it appears upon inspection of the original summons in this case that the original summons in State ex rel. Joseph Howell, Collector, v. Henry Jones, was directed to the sheriff of Gentry county, Mo., and made returnable on...