Oxley v. Oxley

• Decision Date: 01 May 1947
• Docket Number: No. 6674.,6674.
• Citation: 203 S.W.2d 134
• Parties: MAY OXLEY v. FLOYD OXLEY.
• Court: Missouri Court of Appeals

203 S.W.2d 134

MAY OXLEY v. FLOYD OXLEY.

No. 6674.

Springfield Court of Appeals. Missouri.

May 1, 1947.

Rehearing denied June 20, 1947.

Appeal from Circuit Court of Dunklin County. — Hon. James V. Billings, Judge.

AFFIRMED.

Wm. B. Sharp for appellant.

Summons upon Service by Mail and Service by Publication intended to have same scope and effect in the sense of constructive service. New Civil Code, Sec. 28; First Paragraph and Paragraph (d). Osage Inv. Co. v. Sigrist; 250 S.W. 39; Chilton v. Cady, 250 S.W. 403; Garrison v. Schmicke, 193 S.W. (2d) 614; State v. Scott, 104 Mo. 26, l.c. 31; Boas v. Clifford Land & Farm Co., 193 S.W. 806. If petition to review meets the requirements made in Section 1247, R.S. Mo. 1939, it must be made: Osage Inv. Co. v. Sigrist, 250 S.W. 39; Audsley v. Hale, 261 S.W. 117, l.c. 124; Lindell R.E. Co. v. Lindell et al., 142 Mo. 61.

Arthur U. Goodman, Jr. for respondent.

A defendant who has been served with a copy of the petition and summons by registered mail, as provided in Sections 28 and 30 of the Civil Code of Missouri, has been "summoned" within the meaning of the provisions of Section 1247 and cannot maintain a petition for review of the Court's judgment and decree in that action. Essell v. Essell, 278 S.W. 155, 156; 211 Ky. 814; Civil Code of Missouri, Sections 28 and 30, Laws of Missouri, 1943, pp. 367 and 368; Sec. 1247, R.S. Mo. 1939; Sec. 1248, R.S. Mo. 1939; Webster's New International Dictionary; Words and Phrases; Black's Law Dictionary; 60 Corpus Juris, p. 1019; Webster's Encycolpedic Dictionary; Dodge v. Knapp, 87 S.W. 47, 50, 112 Mo. App. 513.

BLAIR, J.

This is an appeal from the order of the Circuit Court of Dunklin County, Missouri, overruling defendant's (now appellant's) motion to set aside, vacate and review a judgment in a suit filed by plaintiff (respondent here).

The land mentioned in the petition is in Dunklin County, Missouri, and the usual petition for partition was filed and commissioners were thereafter appointed by the court. The commissioners reported and their report was confirmed. The land was partitioned in kind by the circuit court. In its order of confirmation, beside the approval of the commissioners' report and the partition of the land in kind between plaintiff and defendant, a $3,000.00 judgment theretofore obtained by plaintiff (allegedly in a divorce case) was made a special lien against the land set off to defendant. The order of confirmation, among other things, contained an order for the costs of the partition suit, including an allowance of attorney's fees. The land set off to defendant was afterwards sold by the sheriff to plaintiff, under execution on a fee bill of $138.81, against the interest of defendant, such costs growing out of the partition suit, and the allowance for attorney's fees.

The interlocutory decree in the partition suit, which also provided for the special lien on defendant's property, in the sum of $3,000.00, as aforesaid, was entered on June 25, 1945. The final decree, approving the report of the commissioners and ordering partition of the land in kind, fixed an attorney's fee of $250.00. One-half of this and other costs in the case were assessed against the interest of defendant in said land. This final judgment was entered on July 6, 1945. Defendant never appeared in the partition suit.

Thereafter, on April 28, 1946, defendant filed his motion or petition praying for the setting aside, vacating and review of the judgment in the partition suit. On Plaintiff's motion, the defendant's petition for such review was overruled and dismissed. Defendant has appealed from such dismissal.

We would quote at length defendant's motion for review, but we will not do so, as such defendant, as appellant, has made a statement in his brief, from which we quote as follows:

"Thereafter, the defendant returned to the state of Missouri and discovered that more than just a divorce had taken place during his absence. Being a man of limited education and of little understanding of the legal papers he had received, he knew that he had lost a wife, but only now was it brought home to him that he had been stripped of his property, all of it, both real and personal. Wherefore, in due time, under the provisions of Sections 1247 to 1251, Revised Statutes of Missouri, 1939, defendant did file his Petition for Review of the default judgment for the causes mentioned in the petition, and to which petition plaintiff filed a Motion to Dismiss. In the consideration of this motion, which contains several reasons for asking that the Petition for Review be dismissed, only one ground, namely: Numbered 6 as follows:

"`6. That defendant was duly summoned as defendant herein and for such reason is not entitled to file or prosecute a petition for review.' was considered by the court in his finding and wherefore he passed judgment sustaining the motion of plaintiff and dismissed the petition for Review. It is from this judgment, and the finding thereof, that defendant does respectfully appeal to this court and to this question of `being summoned' the brief and argument will be limited."

The defendant's petition for review was based on three grounds, towit: The special lien on the land set off to defendant, and the costs of suit; that the petition was untrue in stating the interest of plaintiff and defendant, and in not stating that persons, other than plaintiff and defendant, had an interest in said land; and, lastly, that the judgment entered could be reviewed, because plaintiff had not been served with a copy of the summons and petition in this state.

We regard as serious the claim of defendant that error was committed when the trial court found, as appears in defendant's statement: "6. That defendant was duly summoned as defendant herein and for such reason is not entitled to file or prosecute a petition for review."

Defendant relies on Section 1247, Revised Statutes Missouri, 1939. That section was not repealed by Section 1 of the Laws of 1943, at page 353, and is apparently still in force and effect, and authorizes review in all cases of constructive service. Section 900, Revised Statutes Missouri, 1939, was expressly repealed by Section 1, of the Laws of 1943, page 353, and was no longer in force, when the summons and petition were mailed to defendant in this case; but service by mail against a non-resident in cases affecting specific property (which is true in a partition case) is authorized by Section 28, Laws of 1943, page 367.

While Section 900, Revised Statutes Missouri, 1939, was expressly repealed by Section 1, Laws of 1943, page 353, it does not follow that the construction put upon the language used in Section 900, Revised Statutes Missouri, 1939, and sections of other statutes to the same effect, are not persuasive in the case at bar, if not entirely controlling.

Section 900, Revised Statutes Missouri, 1939, provided that, in cases of partition, a copy of the summons and petition might be delivered by an officer to a defendant residing or being without this State, and then further provided:

"Service of process in conformity with this section shall be as effectual within the limits of this state as personal service within this state, and judgments rendered against defendants thus served shall have the same effect and force within the limits of this state as judgments rendered against defendants personally served with summons in this state."

Section 28, Laws of 1943, at page 367, after authorizing service by mail, outside of this state, in cases affecting specific property, provides:

"If any defendant so served does not appear, judgment may be rendered affecting said property ... as to said defendant."

The only substantial difference between Section 900, Revised Statutes Missouri, 1939, and Sections 28, Laws of 1943, page 367, is that, under the former section, service outside of the state could be made by a certain officer, while, under Section 28, Laws of 1943, page 367, such service may be had by mail.

As this seems to be a case of first impression, the construction given to Section 900, Revised Statutes Missouri, 1939, (although that statute has been expressly repealed) and other similar statutes, cannot but be of great value to us in construing the language used in Section 28, Laws of 1943, page 367.

The Supreme Court, the several Courts of Appeal, and other authorities, have passed on the language we have quoted from Section 900, Revised Statutes Missouri, 1939, and other similar sections. They have uniformly held, notwithstanding the language used in such section that the service of summons and copy of the petition, outside of the state, is as effective as service of summons within this state, that such service outside of the state was "constructive service" only, and that a person so served, if he did not appear, was entitled, under Section 1247, Revised Statutes Missouri, 1939, to have the final judgment in such case reviewed. [50 C.J., page 542, Sec. 213; Payne v. Brooke, 217 S.W. 595; Moss v. Fitch, 212 Mo. 484, 111 S.W. 475, 126 Am. St. Reports, 568; Givens v. Harlow, 251 Mo. 231, l.c. 241, 158 S.W. 355; Smith v. McCutchen, 38 Mo. 415, l.c. 417.] In view of such authority, we must hold likewise, and hold that the judgment of July 6, 1945, was subject to review, if properly attacked.

Defendant has set out the interest of the parties, different from that stated in the petition. Such other parties cannot be affected by such judgment, because they were not parties to such suit. [33 C.J. page 1074, Sec. 35; Graves v. Smith, 278 Mo. 592, 213 S.W. 128.] This was no reason why the judgment as to defendant should be set aside.

The $3,000.00 special lien on defendant's share in the partitioned property (possibly first obtained in a divorce suit) was not attempted to be made a general judgment against defendant, and affected only defendant's interest in specific property and was not even sought to be enforced in...