Ohlmann v. Clarkson Sawmill Co.

• Decision Date: 01 July 1909
• Citation: 120 S.W. 1155,222 Mo. 62
• Parties: OHLMANN v. CLARKSON SAWMILL CO. et al.
• Court: Missouri Supreme Court

120 S.W. 1155

222 Mo. 62

OHLMANN v. CLARKSON SAWMILL CO. et al.

Supreme Court of Missouri, Division No. 1.

July 1, 1909.

1. CONSTITUTIONAL LAW (§ 309) — PROCESS (§ 4)—NECESSITY.

No man can judicially lose his property without his day in court, which depends on notice, and hence due process of law and jurisdiction depend on notice.

2. TAXATION (§ 641)—ACTIONS TO ENFORCE PAYMENT—AGAINST WHOM BROUGHT.

Under Rev. St. 1899, § 9303 (Ann. St. 1906, p. 4274), providing that suits to enforce payment of taxes shall be brought against the owner of the property, such suits must be brought against the record owner, unless the fact is known or the purchaser have notice that the record owner is not the true owner.

3. PROCESS (§ 31)—DESIGNATION OF PARTY— SUBSTITUTED SERVICE.

When summons is actually served on the right person by a wrong name, the error is immaterial, since he has notice of the suit and may appear and plead a misnomer; but when the law substitutes a constructive notice, the correct name of the person to be served is one of the essentials of the notice.

4. PROCESS (§ 31)—SUBSTITUTED SERVICE— SUFFICIENCY—NAME OF PERSON SERVED.

Where a person's land is sought to be taken from him and jurisdiction is sought to be acquired in a suit by constructive notice, the use of the initials of his Christian name is not sufficiently accurate to bind him by such notice, except where estoppel is involved, as where the record title to the land was taken by him in the initials of his Christian name.

5. PROCESS (§ 77)—SUBSTITUTED SERVICE— NECESSITY FOR COMPLIANCE WITH LAW.

Constructive service being highly technical, a rigid observance of the law relating thereto is required or the judgment will be void.

6. NAMES (§ 7)—ABBREVIATIONS—"MIKE.'

"Mike" is not a universally recognized abbreviation of "Michael," but is, strictly speaking, a mere diminutive or nickname.

7. NAMES (§ 7)—"NICKNAME"—DEFINITION.

Nicknames are names given in contempt, derision, or sportive familiarity; a familiar or opprobrious appellation.

8. PROCESS (§ 31)—SUBSTITUTED SERVICE— SUFFICIENCY.

Substituted service in an action to recover delinquent taxes on land, the record owner of which was Michael Ohlmann, which described the defendant and owner as "Mike Ohlman," was insufficient to give the court jurisdiction, where there was no appearance by defendant, and a deed based on a judgment for taxes rendered in the action was void.

Appeal from Circuit Court, Reynolds County; Jos. J. Williams, Judge.

Action by Michael Ohlmann against the Clarkson Sawmill Company and others. Judgment for the mentioned defendant, and plaintiff appeals. Reversed and remanded, with directions to enter judgment for plaintiff.

R. I. January, Arthur T. Brewster, and Sam M. Brewster, for appellant. Dinning & Dinning, for respondent.

LAMM, P. J.

Suit under section 650, Rev. St. 1899 (page 667, Ann. St. 1906). Plaintiff, a resident of Illinois, sues the Clarkson Sawmill Company (joining divers other parties as codefendants) in the Reynolds circuit court to quiet title to S. ½, Sec. 35, Tp. 32, range 2—the sawmill company alone making defense. Judgment went in favor of that defendant on the S. W. ¼ of said section, and, as to the S. E. ¼, dismissing the cause. Plaintiff comes here.

The petition alleges, inter alia, that the sawmill company claims under a quitclaim deed from certain Cartys and others. The answer of that company was a general denial, barring an admission that it held an adverse claim to the S. W. ¼ and an allegation that it owned the S. W. ¼ by a feesimple title. It pleads a misjoinder of causes of action, admits the quitclaim deed by the Cartys, but denies it makes any claim to the S. E. ¼ under that deed.

Plaintiff introduced a patent from the United States to the S. ½ of said section 35 of date September 1, 1859, recorded December 7, 1866. This patent runs to "Michael Ohlmann."

Defendant, over objection and exceptions saved, introduced a tax deed from Harrison, sheriff of Reynolds county, dated May 29, 1879, purporting to convey the S. ½ of section 35 to G. J. Carty.

Sundry objections were made below to this tax deed, and are now pressed. But unless it is necessary to develop and determine other phases of the case, we need heed but one, viz., that the deed does not purport to convey the title of Michael Ohlmann, patentee, but runs against the title of "Mike Ohlman." Carty's bid was $16, for the half section, and the land was knocked down to him for that sum. Whether this sheriff's deed was put of record does not appear.

Supplementing that deed with evidence that certain Cartys and others were the sole heirs of G. J. Carty, the sawmill company introduced a quitclaim deed of date September 5, 1903, conveying to it the title of said heirs in the locus.

Thereupon plaintiff read into the record the petition, authenticated tax bill made a part thereof, and order of publication and judgment in the tax suit, from all which it appears that the suit was instituted in 1878 in the name of the state, to the use of Carter, collector of revenue in Reynolds county, against "Mike Ohlman" as owner of a certain 960 acres of land, including said S. ½, for delinquent taxes; that the back tax bill certified the owner's name to be "Mike Ohlman"; and that the order of publication ran against "Mike Ohlman" as a nonresident. The judgment followed the petition, back tax bill, and order of publication in that particular.

No possession is alleged or proved by either side.

Waiving, for the present, all other questions raised on the record (some of them of no little gravity), we confront the first, viz.: Did Michael Ohlmann's title as patentee pass by a sheriff's deed purporting to convey the title of "Mike Ohlman," when the deed is based on a judgment for taxes on constructive service with no appearance by defendant; the petition, order of publication, and judgment describing the owner as "Mike Ohlman"?

(a) The question goes to jurisdiction and due process of law. No man may judicially lose his property without his day in court. A day in court proceeds on notice. So, due process of law and jurisdiction depend on notice. By Rev. St. 1899, § 9303 (Ann. St. 1906, p. 4274), it is ordained that tax suits shall be brought "against the owner of the property." By this is meant the record owner, unless the fact is known, or the purchaser have notice, that the record owner is not the true owner. When summons is actually served on the right individual by the wrong name, the error becomes immaterial, because he has notice of the suit, and may appear if he choose and plead a misnomer. But absent actual notice when the law for convenience substitutes a constructive notice, the name of the individual defendant obviously becomes one of the essentials and of the very life of the notice. "Names are like definitions in mathematics, though less exact," says Woodward, J., in Jones' Estate, 27 Pa., loc. cit. 338. "The use of names (he continues) is to describe the individual of whom we speak, so as to distinguish him from all other persons."

(b) There will be found a variety of cases decided by us giving voice to the gravity and significance of accuracy in the use of the Christian name of a defendant where his land is sought to be taken from him through jurisdiction acquired in a suit by constructive notice. Thus, the settled doctrine has come to be that the use of the initials of the Christian name is not sufficiently accurate for such purpose. Gillingham v. Brown, 187 Mo. 181, 85 S. W. 1113; Everts v. Lumber and Mining Co., 193 Mo., loc. cit. 449 et seq., 92 S. W. 372; Burkham v. Manewal, 195 Mo. 506, 94 S. W. 520 et seq., and cases cited. The rule is relaxed where estoppel has play; for instance, where the record title was taken by the owner in the initials of his Christian name, and he was served by such initials. Elting v. Gould, 96 Mo. 541, 9 S. W. 922. There is a case (Mosely v. Reily, 126 Mo. 124, 28 S. W. 895, 26 L. R. A. 721) seemingly holding against the general rule, but that case itself was finally sustained only on the theory of estoppel (Turner v. Gregory, 151 Mo., loc. cit. 106, 52 S. W. 234). Use of initials in procuring a license to marry and in being married in accordance with the license was held to create an estoppel, so that a judgment of divorce granted against defendant on publication identifying him by his initials was held valid. McDermott v. Gray, 198 Mo. 266, 95 S. W. 431.

There is a line of cases holding that the law recognizes only one Christian name, and that some freedom may be taken with the initial of a middle name. Howard v. Brown, 197 Mo. 46, 95 S. W. 191, et seq.; Morrison v. Turnbaugh, 192 Mo., loc. cit. 445, 91 S. W. 152, et seq. But in the last case the true name of the defendant appeared in the petition, the affidavit for an order of publication and the order itself. The trouble arose by clerical slip in the judgment. In the Howard Case, where the defendant's name was Henry "P. P." Brown, and he was sued as Henry "T." Brown, significance was given to the fact that his name was grouped with his mother, his sisters, and his nephews, comprising the immediate Brown family to which he belonged, thus identifying him in that way. These cases in no wise militate against the rule that in notice by publication the defendant should be accurately designated by his true name.

If the law tolerated slovenliness or pranks in this regard, then slovenliness and pranks might ripen into a custom and open the door to great mischief. Constructive service at best is harsh. It is service, not in substance and fact, but of a sort to which the name of service is attached from necessity. That method of service, being highly technical, must be strictly pursued. Thus it was said in the Turner Case, supra: "Where resort is had to this method, a substantial, even rigid, observance of the law is required, otherwise the judgment will be void (citing cases)." And in the Morrison...