Priest v. Capitain

• Decision Date: 12 July 1911
• Parties: JOHN G. PRIEST, Trustee, et al. v. RINGROSE J. CAPITAIN et al., Appellants
• Court: Missouri Supreme Court

139 S.W. 204

236 Mo. 446

JOHN G. PRIEST, Trustee, et al. v. RINGROSE J. CAPITAIN et al., Appellants

Supreme Court of Missouri, First Division

July 12, 1911

Appeal from St. Louis City Circuit Court. -- Hon. James E. Withrow Judge.

Reversed and remanded (with directions).

Robert & Robert, William F. McLaughlin, and William L. Becktold for appellants.

(1) Where the officer serving the writ without the State of Missouri swears to it before anybody but the "clerk or judge of the court of which he is an officer," the return is void. R. S. 1899, sec. 582; R. S. 1889, sec. 2029; Russell v. Grant, 122 Mo. 179; Murdock v Hillyer, 45 Mo.App. 287; Adams v. Heckscher, 80 F. 742; Barber v. Morris, 37 Minn. 194; Harris v. Sargent, 37 Ore. 41; State v. Foreman, 121 Mo.App. 509. (2) Where a mode of securing jurisdiction differing from that of the common law is prescribed by the statute, nothing less than a rigid and exact compliance with the provisions of the statute will confer jurisdiction. Kelly v. Murdagh, 184 Mo. 377; Feurt v Caster, 174 Mo. 289; Corrigan v. Schmidt, 126 Mo. 304; Harkness v. Cravens, 126 Mo. 233; Myers v. McRay, 114 Mo. 377; Charles v. Morrow, 99 Mo. 646; Quigley v. Bank, 80 Mo. 297; State ex rel. v. Staley, 76 Mo. 158; State ex rel. v. Horine, 63 Mo.App. 1; Tourville v. Railroad, 61 Mo.App. 533.

Joseph S. Laurie, Albert Blair and Robert E. Collins for respondents.

(1) The requirements of our statute were fully satisfied by the execution of said certificate by the deputy in the name of his principal, the clerk. We thus see that the contention between the opposing parties herein rests upon the construction of our statute. R. S. 1899, secs. 582, 4160; State ex rel. v. Allison, 155 Mo. 330; Springer v. McSpadden, 49 Mo. 299; Nat. Acc. Soc. v. Spiro, 37 C. C. A. 388; Hope v. Sawyer, 14 Ill. 254; Mechem, Pub. Off., sec. 584; Devlin, Deeds, sec. 473; 9 Am. & Eng. Ency. Law, 369. The decisions in construction of the U. S. Stat., sec. 905, as to whether the term "clerk" includes the deputy, are not uniform. A number of decisions hold directly the reverse of those decisions cited in the Murdock case. Young v. Thayer, 1 G. Green 196; Greason v. Davis, 9 Iowa 219; Steinke v. Graves, 16 Utah 293. We refer the court to the following decisions of our own State. Carr v. Jackson, 28 Mo. 314; Etz v. Wheeler, 23 Mo.App. 449; Martin v. Gray, 142 U.S. 236. (2) The alleged defect in the return was cured by amendment. 18 Ency. Pl. & Pr. 590, 959, 961, 962, 963; R. S. 1899, secs. 660, 670; Scruggs v. Scruggs, 46 Mo. 271; Phillips v. Evans, 64 Mo. 171; Webster v. Blount, 39 Mo. 500; Magrew v. Foster, 54 Mo. 258; Bank v. Grewe, 84 Mo. 478; Smoot v. Judd, 184 Mo. 540; Judd v. Smoot, 93 Mo.App. 289. (3) The decree finds specifically that service was made in the State of California by an officer authorized by the law of that State to make such service; and such finding is conclusive. (4) The Statute of Jeofails provides that no judgment shall be reversed or affected for any imperfect or insufficient return.

OPINION

GRAVES, P. J.

In 1892, John G. Priest, trustee, for Sophia Capitain, Manette Capitain, and Frank J. Capitain filed a bill in equity in the St. Louis Circuit Court against Sophia M. Capitain, Ringrose J. Capitain, Isabella Capitain, Chouteau Capitain, Ringrose J. Watson and Catherine A. Watson, his wife. The petition uses both the names Sophia Capitain and Sophia M. Capitain, but they both refer to the same person.

By this petition it was alleged that Ringrose J. Watson conveyed to Joseph Bogy and Edward T. Farish, certain property in the county and city of St. Louis in trust for Sophia Capitain, his daughter, she being then a femme sole under the name of Sophia Watson; that such conveyance was for an estate during the life of the said Sophia Watson, free from the control of her husband, should she marry, and after her death the same to go to any surviving child or children of the said Sophia upon said child attaining the age of twenty-one years, but in the event the said Sophia died without heirs, then such property to revert to the grantor or his heirs wholly discharged of said trust.

The petition further alleged that said Bogy and Farish entered upon said trust; that Bogy resigned in 1878 and Farish in 1879, whereupon Frank J. Capitain was appointed trustee by the circuit court of the said city of St. Louis; that in 1889 the said Frank J. Capitain became a non-resident of this State and John G. Priest was appointed in his place by said circuit court. The petition then avers the marriage of Sophia Watson to Frank J. Capitain and the names of the children born of such marriage. It then charges the insanity of the said Sophia, and that under the orders of the said circuit court the said Priest had incumbered a part of such real estate for the support and maintenance of the said Sophia; that said incumbrance was due, as well as other charges upon said real estate; that the rents and profits from said real estate were insufficient to discharge said liens, and that the said Sophia and her children were without means of support; that there was then due for medical attention to the said Sophia, the sum of $ 4,000. The petition then thus concludes:

"That by reason of the premises, it has become and is indispensable to the welfare of the said insane person and her said minor children that the said parcels of land hereinbefore described be sold so that the charges, incumbrances and debts be paid and a proper reinvestment of the remaining proceeds of said estate be made so as to make such remaining proceeds of said estate productive and obtain a suitable income for the support and maintenance of the said insane person, and the support, maintenance and education of her said minor children.

"That neither of the said parcels of land can be made so far productive as to provide a sufficient income to meet the necessities of said estate and to discharge the said incumbrances.

"That unless the said parcels of land are sold and the said incumbrances, charges and debts satisfied thereby, the whole of said estate will stand in danger of being lost and sacrificed, but that by means of the change in investment herein contemplated provision can be made for the early payment of all such incumbrances, debts and charges and a suitable income be obtained for the said insane person and her said minor children.

"That the present is a favorable time for the sale of said parcels of land and that the said plaintiff, John G. Priest, has received, as trustee under said deed, an offer for the purchase of said parcels which is deemed by him and will, upon hearing, be found by this Honorable Court to be the full market value of said real estate.

"Wherefore, by reason of the premises, the said plaintiffs pray that by its proper order and decree this Honorable Court will direct the said real estate to be sold, the said incumbrance, charges and debts to be paid with the proceeds thereof, the expenses of sale and of this proceeding to be paid, the charges of said trustee to be satisfied and the remainder of the proceeds of sale to be invested for the maintenance of said insane person, and for the maintenance and education of her said minor child and for all other and proper relief."

On this petition summons was issued and personal service had upon Catherine A. and Ringrose J. Watson in the city of St. Louis in March, 1892. For other defendants a summons was sent to the State of California. This summons was thus served, as appears from the record:

"State of California, County of Los Angeles, ss.

"E. D. Gibson, sheriff of Los Angeles county, being duly sworn, makes oath and says that he executed the annexed process in the city of Los Angeles, state and county aforesaid, on the 17th day of March, 1892, by delivering a true copy of the petition and summons as hereto annexed to Sophia M. Capitain, Ringrose J. Capitain, Isabella Capitain and Chouteau Capitain.

"E. D. Gibson.

"Sworn to and subscribed before me this 17th day of March, 1892.

"Witness my hand and the seal of the superior court of Los Angeles county, at office in the city of Los Angeles, this 17th day of March, 1892.

"I further certify that said E. D. Gibson was at the date aforesaid and now is sheriff of the county of Los Angeles, and duly authorized to serve process in the county of Los Angeles and the State of California, and that he is an officer of said court.

"T. H. Ward,

"Clerk of Superior Court.

"By A. A. Bailey,

"Deputy."

After this service, an amended petition was filed and an alias writ of summons issued. This alias writ was sent to the State of California, and return made thereon in this manner:

"State of California, County of Los Angeles, ss.

"C. A. Alexander, deputy sheriff, being duly sworn, makes oath and says that he executed the annexed process in the city of Los Angeles, state and county aforesaid, on the 12th day of May, 1892, by delivering a true copy of the petition and summons as hereto annexed to Sophia M. Capitain, Ringrose J. Capitain, Isabella Capitain and Chouteau Capitain.

"C. A. Alexander,

"Deputy Sheriff.

"Sworn to and subscribed before me, this 13th day of May, 1892.

"Witness my hand and the seal of the superior court of Los Angeles county, at office in the city of Los Angeles, this 13th day of May, 1892.

"I further certify that said C. A. Alexander was at the date aforesaid and now is deputy sheriff of the Los Angeles county, and duly authorized to serve process in the county of Los Angeles and State of California, and that he is an officer of said court.

"(Seal) T. H. Ward,

"Clerk of Superior Sourt, said Co. and State.

"By A. Bray, Deputy."

The difference between the original and amended petitions may...