Holland v. Adair

• Citation: 55 Mo. 40
• Parties: THOMAS HOLLAND, Respondent, v. THOMAS ADAIR AND M. W. JOHNSON, Appellants.
• Decision Date: 31 January 1874
• Court: Missouri Supreme Court

55 Mo. 40

THOMAS HOLLAND, Respondent,

v.THOMAS ADAIR AND M. W. JOHNSON, Appellants.

Supreme Court of Missouri.

January Term, 1874.

Appeal from Hickory Circuit Court.

J. S. Phelps & C. B. McAfee, for Appellants.

I. The effect of a sale under an irregular judgment, whether made to a party plaintiff or some third person, is the same, and the validity of such judgment cannot be attacked in a collateral proceeding. (See Groner vs. Smith, 49 Mo., 318.)

F. P. Wright & W. P. Johnson, for Respondent.

I. The law is well settled, that where both parties claim under the same third person it is prima facie sufficient to prove the derivation of title from him without proving his title; defendants do not claim title paramount to Henry W. Holland, but claim his and only his title. (2 Greenl. Ev., 3, 307; Hightower vs. Williams, 38 Ga., 567; Brown vs. Brown, 45 Mo., 414.)

II. The judgment in the Pettis Circuit Court under which defendants claim is null and void. It was rendered on the amended petition which did away with the original petition under which the publication was made, and was entirely different and claimed a vastly greater sum. (See Janney vs. Spedden, 38 Mo., 395.)

III. The judgment is also void for want of a sufficient notice. The publication was made in 1864 under the statute of 1855, page 246, § 23, “which requires the order of publication to be made stating the nature and amount of the plaintiff's demand or damages claimed, and the publication does not state any amount whatever. Though the levy of the attachment may give the court jurisdiction over the property attached for certain purposes, yet the court could not condemn the land for sale without notice to the person, as a judgment rendered against a person without notice is entirely void. (Durossett's Admr. vs. Hall, 38 Mo., 246; Smith vs. Ross, 7 Mo., 463.)

VORIES, Judge, delivered the opinion of the court.

This was an action of ejectment, brought in the Hickory Circuit Court on the 5th day of February, 1870, by respondent against the appellants, to recover certain lands in the petition described. The petition was in the usual form. The defendants in their answer simply denied the allegations of the petition. The cause was tried by the court, a jury having been waived by the parties. It was admitted on the hearing that the defendants were in possession of the lands sued for. At the trial the plaintiff read in evidence a deed dated the 17th of April, 1866, from Henry W. Holland, to himself, for the lands in controversy. He then read in evidence a patent from the United States, conveying a part of the lands sued for to Henry W. Holland, and also other deeds to other parts of the land, by which he attempted to derive title from the United States to Henry W. Holland; but in this he failed as to a small part of the land. It was also shown by the evidence of the plaintiff, that there was a small improvement with a log house on part of the land, and that several years since, Henry W. Holland was residing on the land, and that the monthly rents were worth from two to three dollars. The defendants on their part read in evidence a deed from John W. Quigg, as sheriff of Hickory county, to defendant Johnson, for the land in controversy. This deed recites that on the 22nd day of July 1864, a writ of attachment was issued from the Hickory Circuit Court in favor of Edward B. Torbert, William D. Murphy, Joseph W. McClurg and Marshall W. Johnson, against Henry W. Holland and Alexander Foster; which writ was delivered to the sheriff of said county-and by him, on the 3rd day of August, 1864, levied on all the right, title, interest and estate of the said Henry W. Holland in or to the land in controversy; that on the 31st day of July a judgment was rendered in the Circuit Court of Pettis county, in favor of said Edward B. Torbert, William Murphy, Joseph W. McClurg and Marshall W. Johnson, against the said Henry W. Holland, Alexander Foster, William F. Hicks and Benjamin H. Massey for the sum of thirty thousand dollars and costs, and said lands ordered to be sold to satisfy the same; that on the 22nd day of January, 1868, a special execution was issued on said judgment by the clerk of the Petti-Circuit Court, against the said Henry W. Holland, Alexander Foster, William F. Hicks and Benjamin H. Massey in favor of said plaintiffs; that said execution was delivered to the sheriff of Hickory county, who proceeded to levy and sell the land in controversy, in other respects substantially in conformity with the statutes; and that the lands were purchased at said sale by defendant Johnson, and were conveyed to him by said sheriff, &c., in the usual way. This deed was all of the evidence offered by the defendants.

The plaintiffs then, to destroy the efficacy of the deed read by defendants, offered and read in evidence the entire transcript of the proceedings, and judgment, and execution in the cause commenced in the Hickory Circuit court, of Torbert vs. Charles A. Pippin, Benjamin H. Massey, Alexander Foster, Henry W. Holland and a number of other persons. The transcript being admitted by the defendants to be a transcript of the same cause and judgment upon which the special execution was issued, under which defendant Johnson purchased the land in controversy from the sheriff. From this transcript it appears that the plaintiffs filed in the office of the clerk of the Hickory Circuit Court, on the 21st day of July, 1864, a petition in which they charge that the defendants wrongfully and wilfully, without leave, at the county of Camdem, took and carried away a large amount of goods of plaintiff's, consisting of boots, shoes, hats, blankets and other dry goods and groceries named in the petition (an account of which was filed,) of the value of thirty thousand dollars, for which judgment was prayed. An affidavit was filed with the petition for an attachment setting forth that the value of the goods was thirty thousand dollars, and that defendants Holland and Foster had so abandoned or absented themselves from their usnal places of abode, that the usual process of the law could not be served on them. The affidavit and bond for attachment were in the usual form. On the 22nd of July, 1864, an attachment was issued in the cause against the property of Holland and Foster or so much as would satisfy the sum of thirty thousand dollars. The writ contained a clause of summons against the other defendants. It is shown by the return on the attachment, that defendants Holland and Foster were not found, but that the land in controversy was attached as the property of Henry W. Holland; a number of the other defendants were personally served or summoned, and afterwards appeared and filed their answers to the petition. At the September term for 1864 of the Hickory Circuit Court, an order of publication was made against defendants, Holland and Foster. In this order it is stated that defendants Holland and Foster, cannot be summoned. It is therefore ordered that a publication be made notifying them “that an action has been commenced against them by petition and attachment in the Circuit Court of Hickory county, founded on an account for damages, for an unlawful taking and detention of goods and merchandize; that their property has been attached, and that unless they be, and appear, &c., judgment will be rendered against them and their property sold to satisfy the same.” It was further ordered, that the publication be made in the State Times at Jefferson City.

At the September term of the Hickory Circuit Court for the year 1865, part of the defendants who had appeared and answered, filed a motion praying the court to change the venue in the case to some other county for reasons stated. This motion was sustained and the cause sent for trial to Pettis county. After the cause was transferred to Pettis county at the November term of the Pettis Circuit Court, in the year 1865 the plaintiff Murphy, having before this time died, the remaining plaintiffs as surviving partners obtained leave to file an amended petition in vacation, and the cause was continued. The amended petition was filed on the 6th day of June, 1866, by which it was charged “that defendants during the months of August, September and October, in the year 1861, at Linn Creek, Camden county, Missouri, unlawfully without leave, wrongfully, willfully and maliciously took and carried away, and converted to their own use from the store and premises of the plaintiffs at said county of Camden, goods, wares and merchandize belonging to, and in the possession of, the plaintiffs, of the value of one hundred and thirty-five thousand dollars,” (the items of all which were filed with the petition). The petition further charges, “that the injury complained of was willfully and maliciously done by defendants; by reason of which, plaintiffs are entitled to exemplary damages.” Judgment was prayed for two hundred thousand dollars. With this amended petition was filed a sworn bill of particulars amounting to one hundred and thirty-five thousand dollars. The only notice ever given of the filing of this amended petition in vacation, was, that a copy of the petition with the notice following was fastened to the door of the office of the clerk of the Pettis Circuit Court on the 13th day of December, 1866:

“To Benjamin H. Massey and Henry W. Holland: You are hereby notified that an amended petition, of which the above is a copy, has been filed in the above named cause.”

After this notice, and after the suit had been dismissed as to all of the defendants who had been served with a summons, and hd appeared on the 31st day of July 1867, the cause being called for trial, proof of publication was made as to the defendants Holland and Foster, and a judgment by default was taken as to them and judgment by default was taken as to defendants Hicks and Massey; the court proceeded to assess the damages and after having heard the evidence assessed the damages at the sum of thirty...