Newton v. Olson-Schmidt Const. Co.

• Decision Date: 23 February 1923
• Docket Number: No. 23450.,23450.
• Citation: 248 S.W. 929
• Parties: NEWTON v. OLSON-SCHMIDT CONST. CO.
• Court: Missouri Supreme Court

248 S.W. 929

NEWTON v. OLSON-SCHMIDT CONST. CO.

No. 23450.

Supreme Court of Missouri, Division No. 2.

February 23, 1923.

Appeal from Circuit Court, Buchanan County; Thomas B. Allen, Judge.

Action by Scott L. Newton against the Olson-Schmidt Construction Company. From judgment for plaintiff, but taxing costs against him, both parties appeal. Affirmed as to judgment; reversed as to costs.

Perry A. Brubaker, of St. Joseph, for plaintiff.

J. Vernon Gaddy, of St. Joseph, for defendant.

HIGBEE, C.

The first count of the amended petition is an action under section 1970, it. S. 1919, to determine title. The second: count pleads fraud in the procurement of a judgment by defendant declaring a tax bill for $1.71 a lien on plaintiff's lot and in the sale thereof, and prays the court to cancel the sheriff's deed conveying the lot to defendant as a cloud on plaintiff's title. The court rendered judgment for plaintiff on each count, found that plaintiff was the owner of the lot in fee, and canceled the sheriff's deed, but taxed all the costs against the plaintiff and overruled a motion to tax them against the defendant Both parties appealed.

In the view we take of the case it is not necessary to set out the pleadings. The amended petition is very long, covering 11 pages of the abstract, pleading fraud in concealing from plaintiff knowledge of bringing the suit and in the procurement of the judgment and sale of " the lot. The petition abounds in repetitions and legal conclusions. It also challenges the jurisdiction of the circuit court; the tax bill being for less than $300. No assault was made on the petition, however, and we think it sufficient to support the judgment.

Plaintiff testified he had lived in St. Joseph 20 years; that he bought the lot in February, 1914, and erected a house upon it at a cost of $800; that he was a single man, never having married; that he lived in the house and had a place of business in the city. It was admitted that plaintiff's name was Scott L. Newton, and that the title to the lot was in Scott L. Newton at the time defendant brought suit to enforce the lien of the tax bill, December 20, 1916. It was issued December 21, 1914. By the statute the lien of the tax bill expired in 2 years from the date of its issue unless suit was brought within that time to enforce the lien. Section 7797, R. S. 1919. The action to enforce the lien was brought in the circuit court of Buchanan county against S. L. Newton and Mrs. S. L. Newton. The summons was issued December 20, 1916, returnable to the May term, 1917. A non est return was made by the sheriff. On July 20, 1917, the court made an order of publication against S. L. Newton and Mrs. S. L. Newton, based on the sheriff's return. Proof of publication was made and judgment rendered October 4, 1917, enforcing the lien of the tax bill, on which special execution issued, the lot was sold to defendant for $2, and sheriff's deed was made to the defendant. Plaintiff first learned of this sale in May, 1918. He never before, that time had heard of the tax bill, suit, judgment, or sheriff's sale. It was shown that the lot was worth $800.

1. On the record we are of the opinion that the learned trial court was justified in finding the issues for the plaintiff and rendering judgment in his favor. It was admitted that the title was in Scott L. Newton. The order of publication addressed to S. L. Newton was not sufficient to give the court jurisdiction to render judgment against Scott L. Newton. The third syllabus to the opinion in Vincent v. Means, 184 Mo. 327, 82 S. W. 96, reads:

"A judgment against M. C. Vincent, in pursuance to a notice by publication directed to M. C. Vincent, is void as against Minos C. Vincent, there being no evidence to show that the defendant had ever received deeds to land or conveyed land in the name of M. C. Vincent. As a rule the first or Christian name of both plaintiff and defendant should be set forth in full in all judicial proceedings, the initials being no part of the name."

In Stevenson v. Brown, 264 Mo. 182, 188. 174 S. W. 414, 415, we said:

"`This court has uniformly held [citing Vincent v. Means and other cases] that, except in cases presenting certain elements of estoppel, publication directed to a defendant by initials in lieu of his Christian name is wholly insufficient, and a judgment rendered pursuant to such void publication is itself void. There is nothing in the record which brings this case within the exception mentioned.'

"Under these holdings the tax judgment and...