Kelly v. Murdagh
| Decision Date | 23 November 1904 |
| Citation | 184 Mo. 377,83 S.W. 437 |
| Parties | KELLY et al. v. MURDAGH et al. |
| Court | Missouri Supreme Court |
1. Rev. St. 1899, § 575, provides that, if plaintiff shall allege in his petition that defendants are nonresidents, the court shall make an order of publication. Section 577 provides that when summons shall be issued against a defendant, and the sheriff return that he cannot be found, the court shall make an order of publication. A petition alleged that defendants were nonresidents. No summons was issued, and the order of publication recited that it appeared that defendants could not be found in the "city of St. Louis." The order published recited that it appeared that defendants were nonresidents of the state, and that ordinary process could not be served. An employé of the clerk entered in the record book an order of publication, addressed to defendants as nonresidents, based on the statement of the petition; but the clerk erased such order, and entered the order given above. Held, that there was no sufficient service on defendants, the order of publication being insufficient.
Appeal from St. Louis Circuit Court; Horatio D. Wood, Judge.
Action by John Kelly and others against E. D. Murdagh and others. From a judgment for plaintiffs, defendant Murdagh appeals. Affirmed.
S. T. G. Smith, for appellant. Finkelnburg, Nagel & Kirby, for respondents.
This is a suit under the statute to quiet title to real estate. The judgment was for the plaintiffs, decreeing that the title to the land was well vested in them in fee simple, and that defendants had no interest in it, from which judgment defendant Murdagh appealed.
It is conceded by appellant that the title is in the plaintiffs, and the decree is right unless the title passed by virtue of a certain deed by the sheriff made to Meng as purchaser at a sale under special execution of a judgment in rem for taxes against this land. Appellant, Murdagh, holds by subsequent conveyances whatever title Meng acquired under that deed. The record in the tax suit was in evidence at the trial, and showed as follows: The petition stated that the defendants were the owners of the land and were nonresidents of the state. No summons issued, but upon the filing of the petition there was an order of publication made by the court reciting that, it appearing to the court that the defendants "cannot be found in the city of St. Louis, and the court being satisfied that the ordinary process of law cannot be served upon them, it is ordered by the court that the said defendants be notified," etc., by publication. The proof of publication showed what purported to be a copy of the order of the court, but it recited that, "it appearing to the court from the petition filed in this cause that [the defendants, meaning them] are nonresidents of the state of Missouri, and that the court being satisfied that the ordinary process of the law cannot be served upon them, it is ordained," etc. The defendants not appearing, a default was entered against them, and in due time a final judgment in rem was rendered condemning the land to be sold for taxes; special execution issued, under which the sheriff sold the land, and Meng became the purchaser. The first question that arises is, was that a valid judgment? There was no summons and no appearance. The notice, if notice at all, was constructive. Where reliance is rested on a judgment obtained on constructive notice, it must be shown that the notice was given in strict compliance with the statute. The order of the court or the clerk in vacation must appear to have been based on the base prescribed by the statute, and not on some other base, and the order published must be the order made by the court or the clerk in vacation; not some other order of similar character. This order of publication does not sustain the test. A...
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Cole v. Parker-Washington Company
...Admire, 149 Mo. 650, 51 S.W. 463; Parker v. Burton, 172 Mo. 85, 72 S.W. 663; Cummings v. Brown, 181 Mo. 711, 81 S.W. 158; Kelly v. Murdagh, 184 Mo. 377, 83 S.W. 437; Co. v. Land & Cattle Co., 187 Mo. 420, 86 S.W. 145; Gibbs v. Southern, 116 Mo. 204, 22 S.W. 713; Evarts v. Lumber Co., 193 Mo......
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Cole v. Parker-Washington Co.
...149 Mo. 656, 51 S. W. 463; Parker v. Burton, 172 Mo. 85, 72 S. W. 663; Cummings v. Brown, 181 Mo. 711, 81 S. W. 158; Kelly v. Murdagh, 184 Mo. 377, 83 S. W. 437; Land Co. v. Land & Cattle Co., 187 Mo. 435, 86 S. W. 145; Gibbs v. Southern, 116 Mo. 204, 22 S. W. 713; Evarts v. Lumber Co., 193......
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Davison v. Arne
...run to nonresidents. Maniscalo v. Stam, 108 N.Y.S. 65; Elsea v. Bass, 77 S.W.2d l. c. 166; State v. Privitt, 39 S.W.2d l. c. 578; Kelly v. Merdaugh, 184 Mo. 377; Dent Assn., 254 S.W. 1080. (4) Long delayed order of publication is invalid, and judgment at a delayed term in a tax suit against......
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Evarts v. Missouri Lumber and Mining Company
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