Peak v. Peak

• Decision Date: 02 December 1915
• Docket Number: 17602
• Parties: PEAK v. PEAK ET AL.
• Court: Missouri Supreme Court

181 S.W. 394

PEAK v. PEAK ET AL.

No. 17602

Supreme Court of Missouri, First Division

December 2, 1915

Rehearing Denied Jan. 4, 1916.

Appeal from Circuit Court, Monroe County; William T. Ragland, Judge.

Action by Lou Ann Peak against Clarence Peak and others for the partition of real estate. From a decree dismissing the action, plaintiff appeals. Reversed.

J. M Crutcher, Thos. F. Hurd, and James P. Boyd, all of Paris, for appellant.

J. H Whitecotton and J. W. Wight, both of Moberly, and W. W Barnes, of Paris, for respondents.

OPINION

BOND J.

Lou Ann Peak obtained a divorce from her husband on the 3d of November, 1898, and was adjudged alimony $8.33 1/3 per month which was decreed to be a specific lien on the husband’s interest in the tract of land which she seeks to partition in the present suit.

In July, 1908, Lou Ann Peak brought an action against her husband in the same court, alleging the terms of the former judgment in her favor for alimony, and that it was unpaid, and that her husband was a nonresident. Said petition concluded, to wit:

"Wherefore plaintiff prays the court for an order and judgment reviving said judgment against the defendant, and in favor of plaintiff and that the lien thereof be continued against the real estate hereinbefore described, and for costs expended by plaintiff, and for such orders and judgments as the court may deem just and right in the premises."

The clerk made an order of publication in vacation, requiring defendant to appear at the August term of said court, which order of publication, among other things, contained substantially the same recitals as the one hereinafter copied. This order of publication was duly published. Thereafter at the August term, 1908, of said court a writ of scire facias was awarded to plaintiff, which recited the obtention of the judgment in her favor on the 3d of November, 1898, setting out its terms fully and that it had not been paid or satisfied, and concluded, to wit:

"Wherefore the said Lou Ann Peak has asked of us that a proper remedy be granted her in this behalf, and that the lien of said judgment upon the lands, tenements, and real estate of the said Clarence Peak may be revived and continued as by law provided.

You are hereby commanded to summon the said Clarence Peak and his tenants, and all persons occupying or claiming any of the lands, tenements, and real estate of the said Clarence Peak in the said county of Monroe to appear before our said circuit court, for Monroe county at the next term thereof, to be held on the 2d Monday of December, 1908, then and there to show cause, if any they have, why the said judgment, in form aforesaid, as rendered, and the lien thereof upon the real estate of said Clarence Peak, should not be revived according to the force and form of said judgment, if he, the said Clarence Peak, or his tenants and the occupants of his lands shall think fit, and further, to do and receive what our said court shall then and there determine concerning them, or any of them, in this behalf. And have you then and there this writ, with your proceedings thereunder.

Witness my hand and seal of said court at office in Paris, Mo., this 14th day of September, 1908.

Chas. L. Dry, Clerk,

By J. F. Smock, Deputy.

I hereby certify that I executed the within writ by making diligent search and failing to find defendant, Clarence Peak, in Monroe county, Mo.

Witness my hand.

F. M. Nolen,

Sheriff, Monroe County, Mo."

After the above return by the sheriff of the writ of scire facias, the said court at its December term, 1908, made an order of publication against the defendant which among other things recited:

"It is therefore ordered by said court that said defendant, Clarence Peak, be notified by publication that plaintiff by petition herein, filed of date July 1, 1908, has commenced suit against said defendant the immediate object and general nature of which is to revive a certain judgment which the said plaintiff holds against the said defendant obtained in the circuit court of said Monroe county on November 3, 1898. And it is further ordered that said defendant be and appear in this court on the first day of the next term thereof, to be holden at the city of Paris, Monroe county, Mo., on Monday the 12th day of April, 1909, and on or before the first day of said term, to answer or plead to said petition or in default therein said petition will be taken and adjudged as confessed, and judgment by default will be rendered against said defendant."

This publication was duly made.

Upon the coming on of the April term, 1909, of said court, the cause was duly submitted to the court and a judgment rendered reviving in all things the former judgment against the defendant for alimony, then amounting to $1,144.10, and reviving the lien thereof on said lands, whereupon a special...