Jewett v. Boardman

Citation181 Mo. 647,81 S.W. 186
PartiesJEWETT et al. v. BOARDMAN.
Decision Date25 May 1904
CourtUnited States State Supreme Court of Missouri

2. In the minutes of the clerk of a court was a memorandum, "P. V. D., judgment for plaintiff for $714 against property attached described as follows," and a description of certain land followed; and on the court records of that day appeared "P. V. D.," followed by a blank space, in which a judgment might have been written. Held, that such record showed no judgment.

3. Rev. St. 1899, § 581, declares that service on a nonresident by publication may be had by publishing the notice in some newspaper published in the county where suit is instituted, if there be a paper published there, and, if not, then in some paper published in the state. The act of the General Assembly approved April 28, 1877 (Laws 1877, p. 215), and the act amendatory thereof approved April 22, 1879 (Laws 1879, p. 84), gave the circuit court sitting at the city of P. exclusive jurisdiction in all suits arising in a certain part of M. county. Held, that the circuit court at P. could not obtain jurisdiction, by publication in a newspaper issued in that part of the county other than that in which such court had jurisdiction under the act of 1877, as amended by the act of 1879, where there was a newspaper published in that part of the county in which it did have jurisdiction.

4. Where a judgment is invalid on the face of its own record, it is subject to collateral attack.

5. A petition to set aside a decree is not insufficient, as one to set aside a cloud on title, because of the fact that it fails to allege in so many words that the decree forms a cloud, since such an allegation is a mere conclusion of law.

6. A judgment creditor attached wild lands which stood in the name of the debtor's wife, purchased the same at judicial sale, and received a sheriff's deed, and subsequently he sued in equity, making publication for service; and it was decreed that the lands were in fact the property of the husband, and the wife was divested of title, which was vested in plaintiff. In a subsequent suit by the husband and wife to set aside the decree, the question of the validity of the judgment in attachment and of the sheriff's deed and of the service by publication depended on whether the minutes of the clerk in the attachment suit and the court records constituted a judgment, on the construction of a statute, and on evidence as to whether a newspaper was published within the territorial jurisdiction of the court in which the equity suit to divest title was brought. Held, that in view of such facts, and the fact that a sheriff's deed is by statute prima facie evidence of the truth of its recitals, the suit was maintainable as one to set aside a cloud on title.

Appeal from Circuit Court, Macon County; Nat M. Shelton, Judge.

Suit by Nellie M. Jewett and Philo D. Jewett against Henry J. Boardman. From a decree for plaintiffs, defendant appeals. Affirmed.

Ben Eli Guthrie and Dan R. Hughes, for appellant. R. S. Matthews and Otho F. Matthews, for respondent.

VALLIANT, J.

This is a suit in equity to set aside a judgment or decree rendered in the circuit court of Macon county by default against these plaintiffs, who are husband and wife, in favor of this defendant, whereby the plaintiff Nellie M. Jewett was divested of title to certain land in that county, and the defendant invested with the same. The suit in which the decree that is now sought to be set aside was rendered was filed by this defendant, as plaintiff, against these plaintiffs, as defendants, on 19th September, 1898, in the circuit court of Macon county, at La Plata. In the petition therein it was alleged that the defendants were nonresidents of Missouri; that at the April term, 1896, of the Macon circuit court, in an attachment suit therein pending, wherein Boardman was plaintiff and Philo D. Jewett was defendant, a judgment was rendered in favor of that plaintiff against that defendant for $714 and costs, and the land in question, which was the subject of that attachment, was during the September term, 1896, sold by the sheriff under execution that had issued on the judgment; and that at that sale plaintiff had become the purchaser, and received the sheriff's deed. The petition then went on to allege that the land really belonged to Philo D. Jewett at the date of the attachment, but that he had caused the title to be taken in the name of his wife, Nellie M. Jewett, and held by her, to defraud his creditors and place it beyond their reach by ordinary process. The prayer of the petition was to divest the wife of the title and vest it in that plaintiff. The decree was in conformity to the prayer. On the filing of the petition in that case there was an order of publication made by the clerk in vacation against the Jewetts as nonresidents. That order of publication was directed to a newspaper published in the city of Macon, the county seat, and was published in that paper. On proof of the publication, the defendants not appearing, an interlocutory default was entered against them, which was followed by the final decree above mentioned. This suit is to set aside that decree and the sheriff's deed in the attachment suit. The petition in the suit now before us alleges that the court in which the judgment in the attachment suit is said to have been rendered, which was the circuit court sitting at the city of Macon, had no jurisdiction in that case, because Philo D. Jewett was not served with process, and the land said to have been attached was not in that part of the county over which the circuit court in the city of Macon had jurisdiction, but was in the exclusive jurisdiction of the circuit court sitting at La Plata. It also alleges that no judgment was in fact rendered in the attachment suit. The petition further alleges that the circuit court at La Plata, in which the decree which is now sought to be set aside was rendered, acquired no jurisdiction over these plaintiffs (defendants therein), because they were not served with process, and because the order of publication against them as nonresidents was made in a newspaper outside of the territorial jurisdiction of the La Plata court. The petition also alleges that the selection of the Macon court for the attachment suit, and of the Macon newspaper for the publication of the notice of the La Plata suit, was made by the plaintiff in those suits with the fraudulent design of preventing those suits from coming to the notice of these plaintiffs. The answer is a general denial. The plaintiffs' evidence was as follows: The record in the attachment suit at Macon showed the petition; affidavit; writ; return of the sheriff thereon that he had attached this land (omitting, however, to say either that the defendant was served, or that he could not be found); order of publication; and proof that it was published in a newspaper in Macon City. In the minutes of the clerk, under date May 2, 1896, is a memorandum as follows: "Henry J. Boatman v. Philo D. Jewett. Judgment for plaintiff for $714.00 against property attached described as follows" (describing this land). On the court records of that day is this: "Henry J. Boatman v. Philo D. Jewett." This is followed by a blank space, in which a judgment might have been written, but was not. Special execution issued under date September 1, 1896, reciting a judgment as indicated in the clerk's memorandum above shown, under which the sheriff sold the land, as the property of Philo D. Jewett, to Boardman, the plaintiff in attachment, and executed a...

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