Himmelberger-Harrison Lumber Co. v. Keener

• Decision Date: 09 March 1909
• Citation: 217 Mo. 522,117 S.W. 42
• Parties: HIMMELBERGER-HARRISON LUMBER CO. v. KEENER et al.
• Court: Missouri Supreme Court

117 S.W. 42

217 Mo. 522

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

Supreme Court of Missouri, Division No. 2.

March 9, 1909.

1. PROCESS (§ 98) — PUBLICATION — ORDER— "VACATION."

Rev. St. 1879, c. 59, art. 4, § 3494, provides that in certain actions, if plaintiff shall allege in his petition or file an affidavit that any of the defendants are nonresidents, the court, or in vacation the clerk thereof, shall make an order for service by publication. Held, that the term "vacation" was not there used in its common-law sense as the time elapsing between the end of one term and the beginning of another, but included an adjournment from March 20, 1884, to June 16th following, both under Act March 15, 1883, p. 111, declaring that the words "in vacation" shall include any adjournment of court for more than one day, and independent thereof.

2. TAXATION (§ 634)—LIEN—ACTIONS TO ESTABLISH — AFFIDAVIT FOR PUBLICATION — FILING.

Where an affidavit of nonresidence for an order for the publication of process in a suit to foreclose a tax lien was made before a notary public, and alleged defendant's nonresidence, the fact that it was mistakenly first filed with a justice of the peace, who had no jurisdiction of the action, and was then withdrawn and filed in the circuit court, did not render it ineffective to sustain the order of publication.

3. JUSTICES OF THE PEACE (§ 106)—PROCEEDINGS —JURISDICTION—DISMISSAL.

Where a justice of the peace had no jurisdiction of a suit filed before him, he could not prevent its dismissal and a withdrawal of the petition and an affidavit for publication.

4. PROCESS (§ 96)—PUBLICATION—AFFIDAVIT —FILING.

An order for the publication of process was not void because the affidavit of nonresidence on which the order was based was made eight days prior to the order for publication.

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

Action by the Himmelberger-Harrison Lumber Company against James Keener and others. Judgment for defendants, and plaintiff appeals. Reversed and remanded, with directions.

Ralph Wammack and Oliver & Oliver, for appellant. Henry B. Shaw and J. F. Blankenship, for respondents.

GANTT, P. J.

This is a suit to quiet title to 480 acres of land situated in Stoddard county, Mo.

In its petition the plaintiff asserts ownership in this land, and 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 states that during all that time it and its grantors exercised all the acts of ownership and dominion over said land of which it was susceptible. The defendants are the children and heirs at law of James Keener, deceased, and in their answer denied plaintiff's title and possession in and to the lands described, and aver ownership of the said lands in James Keener up to the time of his death in June, 1892, and their right to the said lands by reason of descent as children and heirs at law of said James Keener. On the trial it was agreed that James Keener was the common source of title. The plaintiff then offered a sheriff's deed from N. M. Cobb, sheriff of Stoddard county, to William P. Renner, dated September 15, 1885, and recorded September 22, 1885, conveying the lands in controversy to satisfy a judgment for taxes against said land for the year 1882. The defendants objected to the introduction of this deed, for the reason that they insisted that the judgment under which it was rendered was void, the defendant being a nonresident, and there was no affidavit that the defendant was a nonresident of the state of Missouri or had absconded or had absented himself from his usual place of abode in this state; that there was no affidavit justifying the order of publication, and the affidavit did not allege that ordinary process of law could not be served upon him in this state, and the notice to the defendant was not published for four weeks, but only for four times, or 21 days instead of 28 days; and for the further reason that there was no order of record in the case or otherwise authorizing the publication, and the clerk had no authority to make the order of publication. The court admitted the deed in evidence subject to the objections. Among these objections, the chief reason assigned, and the one finally sustained by the trial court, was that the clerk of the circuit court of Stoddard county had no authority to issue an order of publication at the time this order of publication was issued, to wit, on June 12, 1884. The defendant contended that the circuit court of Stoddard county was in session on that date, and the clerk was only authorized to issue orders of publication in the vacation of the court. In support of these objections, the defendants offered the following testimony: First, the order of publication made by the clerk on the 12th day of June, 1884, which was in the ordinary and usual form of such orders made by clerks in the vacation of the court. Second, the affidavit of C. L. Keaton, the attorney for the collector in the tax suit, which was in the following words: "The State of Missouri, at the Relation and to the Use of William C. Harty, Collector of the Revenue of Stoddard County, State of Missouri, vs. James Keener, Defendant. Before Moses Harvey, a Justice of the Peace for Stoddard County, Missouri. C. L. Keaton, attorney for and in behalf of the above-named plaintiff, makes oath and says, that the above-named defendant in the above-entitled cause is a nonresident and does not reside in the state of Missouri. C. L. Keaton. Subscribed and sworn to before me this 4th day of June, 1884. My term of office expires January 12th, 1887. Emil M. Weber, Notary Public." This affidavit was indorsed as follows: "State of Missouri vs. James Keener. Filed June 12th, 1884. C. H. Barham, Clerk. Filed June 4th, 1884. Moses Harvey, Justice of the Peace." Third, the proof of the publication was attested by the affidavit of the publisher of the newspaper, and showed that it was published as follows: The first insertion June 14, 1884, the second June 21, 1884, the third June 28, 1884, and the fourth July 5, 1884. Defendant then introduced Thomas H. Ezell, who testified he was clerk of the circuit court and the custodian of the records of the said court, and that the records of the said court which he produced in evidence showed that the said court by its order adjourned the March term, 1884, on March 20 to June 16, 1884, on which day it met again. The sheriff's deed was in the ordinary form of a sheriff's deed, and recited that on the 17th day of December, 1884, judgment was rendered in the circuit court of Stoddard county in favor of the state of Missouri, at the relation and to the use of William C. Harty, collector of the revenue of Stoddard county, for the state of Missouri, and against James Keener, for the sum of $12.55 for certain delinquent state, county, and special taxes, and interest assessed and found by the said court to be due and unpaid upon the southeast quarter and west half of section 33, township 25, range 11, and that said taxes and interest found due upon said real estate for the year 1882 amounted to $12.55, and certain costs which had been taxed at $23.75, which were declared a lien in favor of the state of Missouri upon the said above-described tracts; and then recited the issue of a special execution, the receipt of the same by the sheriff, and his levy upon said real estate, and his sale of the same at public vendue, and that William P. Renner was the highest and best bidder for the same at and for the price and sum of $32, in consideration of which he sold, transferred, and conveyed the same to the said Renner. This deed was duly acknowledged in open court and recorded. The plaintiff then offered in evidence other conveyances regular in form down to the plaintiff, and then offered in evidence, also, testimony tending to prove title in plaintiff by adverse possession for more than 10 years prior to the bringing of this suit.

As indicating the court's view of the law upon the facts, the court gave the following two instructions:

"(1) The court declares the law to be that plaintiff has not adduced any evidence in this cause to justify a finding for plaintiff to title to the lands in controversy by adverse possession, and the finding will be for the defendants.

"(2) That if the court finds and believes from the evidence in the cause that on the 20th day of March, 1884, the circuit court of Stoddard county, Mo., was adjourned to sit again on the 16th day of June, 1884, and said adjournment was not a final adjournment of the March term, 1884, of said court until the next regular term in course, but was merely an adjournment of said March term, 1884, until a fixed date on which said March term continued to be held until the 17th day of June, 1884, on which date said term was adjourned until court in course, and that on the 12th day of June, 1884, and pending the temporary adjournment of said March term, 1884, the clerk of said court issued an order of publication against one James Keener in a cause entitled `The State of Missouri, to the Use of W. C. Harty, vs. James Keener,' then pending in said court, for the reason that said James Keener was a nonresident of the state of Missouri, and caused notice to be served upon said Keener by publication, and that said cause came on to be heard at the September term, 1884, of said circuit court of said Stoddard county, and judgment rendered upon said service upon and notice to said James Keener, and that the lands of said Keener were sold to satisfy said judgment, and a deed executed to W. P. Renner upon a prior levy and sale of said lands under said judgment, and that plaintiff in this cause claims under said deed, then and in that event said order of publication and all proceedings based thereon, including said deed, were void for want of authority in said clerk to make or issue order of...