Himmelberger-Harrison Lumber Company v. McCabe

Citation119 S.W. 357,220 Mo. 154
Decision Date18 May 1909
CourtUnited States State Supreme Court of Missouri

Appeal from Stoddard Circuit Court. -- Hon. J. L. Fort, Judge.


Oliver & Oliver and Wammack & Welborn for appellant.

(1) The trial court committed reversible error in holding that the circuit court of Stoddard county was deprived of jurisdiction and power to make the order of publication, because the sheriff of Gentry county dated his return of non est on the 25th day of July, 1890, instead of the first day of September term, 1890, of the circuit court of Stoddard county, to which it was returnable. We insist that the sufficiency of the sheriff's return, and when it was in fact made, and when the summons was in fact returned into the circuit court, were all questions which the circuit court of Stoddard county had before it at the time that it judicially determined that an order of publication was necessary to bring in the defendant. We further insist that all these facts were affirmatively and judicially passed upon by the circuit court at the time that it made the order of publication. We further insist that under Sec. 577, R. S. 1899, it is not the date of the sheriff's return nor the time when the summons is again returned to the clerk, but it is the fact that the defendant named in the summons cannot be found by the sheriff, that enables the court to make an investigation as to whether or not an order of publication should be made or a new summons should issue. Section 672 provides that no judgment shall be stayed, impaired or in any way affected by reason of "any imperfect or insufficient return of any sheriff or other officer." Voorhees v. Jackson, 10 Pet 499; R. S. 1899, secs. 7303, 567, 573, 575, 1601, 672 and 577; State ex rel. v. Finn, 11 Mo.App. 408; State ex rel. v. Finn, 87 Mo. 314; Cummings v Brown, 181 Mo. 711; 1 Black on Judgments, sec. 270, p 327; Lawson on Presumptive Evidence, p. 27; Com. v. Gill, 14 B. Mon. 20. (2) Moreover, the law does not require a vain and useless act or thing to be done. In this instance the sheriff made search for McCabe on the 25th of July, 1890, and could not find him. Evidently he continued the search and at some later period, made the further notation on the summons, "This man lives in Harrison county, Missouri." To hold this summons under such circumstances until the first day of the September term of the Stoddard County Court would be a useless thing. The statute makes it the duty of the sheriff to have the summons in court on the return day, but does not forbid its earlier return. If the jurisdiction of our circuit courts, in bringing in non-resident and unknown defendants, is made to depend upon the day on which a "non est return" is to be made on a summons, it will require a different date and a careful calculation of distances and of the postal facilities for the different sheriffs in the different counties of this State to make returns on summons, in order to confer jurisdiction upon a particular circuit court, authorizing it to notify unknown and non-resident defendants by publication. With all deference to the learned trial judge, who presided in this case, and with all deference to the judge who wrote the opinion of Cummings vs. Brown, 181 Mo. 711, we respectfully insist that such a ruling, if adhered to, would unsettle the title to thousands of homes and overturn the rule that has heretofore prevailed with reference to the presumption and effect of judgments and decrees of courts of general jurisdiction in this State. We therefore ask the court to modify or overrule so much of the Cummings case as attempts to establish the rule that the circuit court's jurisdiction is limited or prescribed in making an order of publication by the time that the sheriff dates his return, and not by the return of non est. State ex rel. v. Finn, 87 Mo. 314; Com. v. Gill, 14 B. Mon. 20; Cummings v. Brown, 181 Mo. 711; Johnson v. Long, 72 Mo. 210; Lenox v. Clark, 52 Mo. 115; R. S. 1899, secs. 567, 573, 575, 577; Lawson on Presumptive Evidence, pp. 27-34; Castleman v. Relfe, 50 Mo. 583. (3) The sheriff's return that McCabe could not be found in Gentry county is conclusive and binding as against Sallee in this proceeding, and he cannot attack in this collateral way the judgment of the circuit court of Stoddard county. McCabe may have a cause of action against the sheriff of Gentry county if the sheriff made a false return, but he cannot raise that question here, or show that the return was false. Schmidt v. Niemeyer, 100 Mo. 209; Smoot v. Judd, 184 Mo. 508; Reiger v. Mullens, 109 S.W. 26; Jones v. Driskill, 94 Mo. 190; State ex rel. v. Finn, 87 Mo. 314. A sheriff's deed for taxes is prima-facie evidence of title. R. S. 1899, sec. 9203; R. S. 1889, sec. 7684; R. S. 1879, sec. 2392. (4) There is nothing in this record showing when the sheriff returned the summons in the tax suit. For all this court knows, and for all the trial court knew, it may have been returned on the first day of the September term of the circuit court of Stoddard county. In the absence of testimony to the contrary the presumption ought to be indulged in that it was rightfully and not wrongfully returned. The maxim omnia praesumuntur rite esse acta is applicable here. Johnson v. Long, 72 Mo. 210; State v. Brown, 75 Mo. 317; Lawson on Presumptive Ev., p. 34; Brackenridge v. Dawson, 7 Ind. 383. But if the summons was prematurely returned, it was only an irregularity, and in no just or legal way prevented the circuit court of Stoddard county from proceeding with the tax suit before it. Glover v. Rawson, 3 Chand. (Wis.) 249, 3 Pin. (Wis.) 226. The statute does not contemplate that the sheriff shall make a search in the nature of a tour throughout the entire county before the court is authorized to make an order of publication. Horton v. Monroe, 98 Mich. 195; Horton v. Brown, 45 Ill.App. 173. (5) The Statute of Limitations vests in the appellant a perfect title to this land. Fitch v. Gosser, 54 Mo. 267. (6) A party, under color of title, may take such possession of a tract of land as it is susceptible of; regard being had to the nature and situation of the land and the uses to which it can be put; if it is timbered land, and bought for that purpose the claimant may take possession of it by cutting fire wood from it, by taking saw logs from it, by erecting buildings on it, or by doing any other visible and notorious act that indicates a claim of ownership over it that is so potential and patent and notorious that the owner of the paper title cannot be deceived as to purpose and intent of the party claiming the land and doing these things. Such possession has been held, by the court, to be adverse possession; a title thus acquired by such notorious acts of ownership has been held sufficient by this court to maintain trespass or forcible entry and detainer, and support actions of ejectment, and, in short, to defeat the claim of the party holding the paper title to such land. Draper v. Shoot, 25 Mo. 203; Fitch v. Gosser, 54 Mo. 267; Ware v. Johnson, 55 Mo. 504; Leeper v. Baker, 68 Mo. 405; Ozark Plateau Land Co. v. Hays, 105 Mo. 152; Benne v. Miller, 149 Mo. 237; Ewing v. Burnet, 11 Pet. 52; Holtzman v. Douglas, 168 U.S. 284; Chapman v. Templeton, 53 Mo. 463. Possession of part of a tract, under color of title, is possession of the whole. R. S. 1899, sec. 4226; Draper v. Shoot, 25 Mo. 203; Heinemann v. Bennett, 144 Mo. 113; Goltermann v. Schiermyer, 125 Mo. 301. (7) The laches and conduct of this respondent ought to defeat him. He has stood by and seen the purchaser at the tax sale in 1891 pay all the taxes that have been assessed against this land, without complaint or an effort on his part to have them assessed against him. He has stood by and seen the purchaser at that sale convey these lands to innocent parties, without a word of complaint. He has seen appellant and its grantor inaugurate schemes for the reclamation and improvement of this land. He has stood by and seen this appellant and its grantor institute suits, ordinary and extraordinary, for the protection of the timber standing on this land and for the protection of the title to it. He has stood by and seen this appellant and its grantor institute legal proceedings for the removal of a cloud on the title to this land that was so serious as to depress and almost destroy the value in these lands. He has stood by and seen appellant and its grantors inaugurate a scheme for the reclamation of these wet lands until the market price of the lands has advanced from a few cents per acre to many dollars per acre at the present time. Naddo v. Bardon, 2 U.S.C. C. A. 335; Turner v. Burke, 99 S.W. 76.

J. M. Sallee and J. W. Peery for respondents.

(1) Under Sec. 577, R. S. 1899, without a non est return, the court has no power to make an order of publication. State ex rel. v. Finn, 87 Mo. 315; Harness v Cravens, 126 Mo. 247; State ex rel. v. Horrine, 63 Mo.App. 7. (2) The statute means a valid and legal non est return. Cummings v. Brown, 181 Mo. 711. A return of a writ, not executed, before the return day, is void and invalid. Dillon v. Rash, 27 Mo. 243; Norton v. Quamby, 25 Mo. 388; Reed v. Low, 163 Mo. 519; Littlefield v. Ramsey, 181 Mo. 613; Gurney v. Moore, 131 Mo. 664; Huhn v. Lang, 122 Mo. 600; Marks v. Hardy, 86 Mo. 232; Rollins v. McIntire, 87 Mo. 496; Johnson v. Lattu, 84 Mo. 139; Cummings v. Brown, 181 Mo. 711. (3) This order of publication is also void upon its face because it fails to recite the jurisdictional fact, that a summons had been issued and regularly returned for the defendant McCabe. It must be remembered that the section of the statute which we are now considering applies only to resident defen...

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