Pitkin v. Flagg

• Decision Date: 03 July 1906
• Citation: 198 Mo. 646,97 S.W. 162
• Parties: PITKIN v. FLAGG et al.
• Court: Missouri Supreme Court

97 S.W. 162

198 Mo. 646

PITKIN v. FLAGG et al.

Supreme Court of Missouri, Division No. 2.

July 3, 1906.

1. PROCESS — SERVICE—PUBLICATION—APPLICATION FOR ORDER.

Rev. St. 1899, § 577, providing that where the sheriff makes a return of non est, the court, on being satisfied that process cannot be served, shall make an order of publication, does not require the court to examine the files and make orders of publication without suggestion from plaintiff's attorney.

2. DISMISSAL AND NONSUIT — FAILURE TO PROSECUTE — SECURING OF SERVICE — DUTY OF PLAINTIFF AND COURT.

Where plaintiff, knowing of the nonresidence of some of the defendants, did not allege it in his petition, or file any affidavit in relation thereto, he cannot excuse his negligence therein and, in failing subsequently to secure orders of publication and service on such defendants, on the ground that the court on its own motion, should have made orders of publication under Rev. St. 1899, § 577.

3. APPEAL — PRESERVATION OF OBJECTION — EXCEPTIONS.

Plaintiff, having failed to except to the refusal of the court to order additional summons or grant an order of publication as to nonresident defendants or enter judgment against those defendants served, could not, on appeal from an order dismissing the cause for failure to prosecute, take advantage of Rev. St. 1899, § 583, providing that where some of several defendants are not summoned or served and do not appear, plaintiff may proceed against those who are summoned or notified.

4. DISMISSAL AND NONSUIT — FAILURE TO PROSECUTE — SECURING OF SERVICE — ACTION INVOLVING LAND.

Petition involving land titles accompanied by lis pendens was filed four months before the succeeding term of court, but no effort was made to serve nonresident defendants, or those living in other counties. During the term the court warned plaintiff to secure service on all defendants before the term six months later, but nothing was done until, at such next term, a motion was made to dismiss for lack of prosecution, when plaintiff demanded additional writs and orders of publication, which would have delayed the cause six months longer. Held, that the motion was properly granted, though the court might, if satisfied as to the nonresidence of defendants, have granted orders of publication without affidavits in relation thereto.

Appeal from Circuit Court, Scotland County; E. R. McKee, Judge.

Action by Albert H. Pitkin against O. Jerome Flagg and others. From an order granting a motion to dismiss, plaintiff appeals. Affirmed.

J. M. Jayne, for appellant. Mudd & Pettingill, for respondents.

GANTT, J.

The plaintiff began this action in the circuit court of Scotland county to set aside a sheriff's deed. The petition was filed October 18, 1902. The petition in short alleges that plaintiff by reason of being an heir at law of H. G. Pitkin, deceased, is entitled to an undivided one-eighth of all the property of which said H. G. Pitkin died seised. The petition sets forth a description of the real estate all lying in Scotland county, Mo. It is then alleged that the defendants except Flagg, Roberts, and Collins are the other heirs at law of the said H. G. Pitkin, deceased. It is then averred that the defendants connived and conspired to cheat or defraud the plaintiff out of his interest in the said lands as an heir of the said H. G. Pitkin, deceased, and had his interest in said real estate levied upon by virtue of a pretended execution without any notice to plaintiff, he being the head of the family, of his rights, and without allowing any exemptions from said executions, and that his interest in said lands was advertised for sale, and at said sale defendant W. J. Roberts bid in said lands, and received a sheriff's deed therefor; that said deed was void, and said sale was made by fraud between the defendants. It is then charged that afterwards, the said W. J. Roberts brought a partition suit to divide said lands and plaintiff and his wife were not made parties thereto. It is then alleged that O. Jerome Flagg purchased a portion of said lands with full knowledge of all the aforesaid facts, whereupon plaintiff asks that the said sheriff's deed be set aside and for naught held. Upon this petition there was no summons issued until the 31st day of December, 1902. On that date a summons was issued against all of the defendants named in the petition directed to the sheriff of Scotland county. At the time of filing his petition plaintiff also filed his lis pendens on the 1st day of January, 1903.

The sheriff of Scotland county made return of the writ by showing service on Rachael A. Pitkin, the mother of plaintiff and widow of H. G. Pitkin, Jesse L. Sanburn, and Henry Collins, and made a "non est" as to the rest of the defendants. At that date the circuit court of Scotland county had two regular terms each year beginning on the first Monday of February and August. At the February term, after the service of this writ, the defendants Collins and Sanburn filed their answers to the plaintiff's petition, and, at the same term, the defendant Rachael A. Pitkin moved the court to require plaintiff to give security for costs, and thereupon the plaintiff filed a cost bond, which was approved by the court. At the said February term, at the request of defendant Rachael A. Pitkin, the court advised the plaintiff that unless the defendants were served with process or publication before the next term of court, the cause would be dismissed for failure to prosecute unless cause should be shown why such service was not had. The cause was then continued to the August term. At the February term, plaintiff asked for no orders of publication nor for any writs to Adair and Buchanan counties. At the next term, Mrs. Rachael A. Pitkin, one of the defendants, filed her motion to dismiss the cause on the ground that the plaintiff began his suit October 18, 1902, and filed his lis pendens involving the title to large tracts of real estate owned by the defendants many of whom are...