Randall v. Snyder

• Decision Date: 14 July 1908
• Citation: 214 Mo. 23,112 S.W. 529
• Parties: RANDALL v. SNYDER et al.
• Court: Missouri Supreme Court

112 S.W. 529

214 Mo. 23

RANDALL v. SNYDER et al.

Supreme Court of Missouri, Division No. 2.

July 14, 1908.

1. JUDGMENT — DEFAULT JUDGMENT — PLEADINGS TO SUSTAIN—AMENDED PLEADING—NECESSITY OF SERVICE.

A petition cannot be amended in a matter of substance after publication of notice so as to make a valid judgment thereon against a defendant not appearing.

2. SAME—COLLATERAL ATTACK.

Where the order of publication in an action on a foreign judgment correctly stated the object and general nature of plaintiffs' demand, and correctly recited the names of plaintiffs in the court of the sister state and the balance due on the judgment, and notified defendant that a judgment would be asked on the judgment in favor of plaintiffs, and that a certified copy of the judgment was filed and made a part of the petition, the fact that the order stated that the judgment had been rendered in the common pleas court of F. county in the sister state, instead of in such court of C. county, did not affect the validity of the judgment rendered in the action as against a collateral attack.

3. TAXATION—ENFORCEMENT OF LIENS FOR TAXES—ACTIONS.

Under the tax law to enforce the state's lien against specific real property, a statement of the object and general nature of the petition, which omits the land against which the lien is claimed, is insufficient.

4. JUDGMENT—COLLATERAL ATTACK—GROUNDS —ORDER OF PUBLICATION.

Under Rev. St. 1899, § 575 (Ann. St. 1906, p. 601), authorizing an order of publication in an action against a nonresident, etc., an order of publication, in an action against a non-resident to recover on a foreign judgment and have the judgment adjudged a lien on real estate, need not state that the land of defendant has been attached and describe the land in the order of publication, and attachment proceedings are not void as against a collateral attack because the order of publication did not describe the land attached.

5. SAME—OBJECTIONS TO CAPACITY OF PLAINTIFF TO SUE.

The objections that foreign executors, instituting an action in Missouri, have no right as such to maintain an action in Missouri, and have no authority to bring an action on a judgment in favor of testator after the estate has been administered and they have been discharged, are matters of defense which may be pleaded, and do not go to the jurisdiction of the court, and cannot be raised in a collateral attack on the judgment rendered in favor of the executors.

Appeal from Circuit Court, Shannon County; W. N. Evans, Judge.

Action by C. V. L. Randall against William H. Snyder and another. From a judgment for defendants, plaintiff appeals. Affirmed.

J. W. Chilton and Ed. J. Shuck, for appellant. Shuck & Cunningham, for respondents.

GANTT, J.

This is a proceeding under section 650, Rev. St. 1899 (Ann. St. 1906, p. 667), to try and determine the title to 320 acres, the S. ½ of section No. 1, in township 28, of range 6 W., in Shannon county, Mo. The proceeding was begun December 23, 1904, and was tried at the March term, 1905, resulting in a judgment for the defendants, from which plaintiff has appealed to this court. The land in controversy is wild and uncultivated timber land and not in the actual possession of any person or persons. The defendants answered. The defendant lumber company admitted that it was a corporation organized under the laws of this state, and that it claims the title and ownership of the said real estate, and denies all other allegations. The defendant Snyder admitted that he was a nonresident of this state, and alleged that the land described in the petition was owned by and in possession of the Bunker Lumber Company, and denied all other allegations in the petition. On the trial it was admitted by both plaintiff and the defendant that Onslow B. Todd was the common source of title. The plaintiff then introduced in evidence a quitclaim deed from said Todd and wife to plaintiff of date November 11, 1904, and filed for record on November 26, 1904, conveying to plaintiff all of the lands in controversy. Plaintiff then rested. The defendants then offered in evidence a sheriff's deed, executed by J. T. Bay, exsheriff of Shannon county, Mo., which recited a judgment rendered in the circuit court of Shannon county on the 16th day of September, 1898, in favor of William H. Snyder and James B. Pearson, executors of the last will and testament of Sarah Pearson, deceased, and against Onslow B. Todd for $1,634.15 for debt and $23.02 for costs, and reciting that said judgment had been adjudged a lien and charge upon said S. ½ of section 1, township 28 N., of range 6 W., upon which a special execution was issued from the clerk's office of said court in favor of the said Snyder and Pearson, executors of the last will and testament of Sarah Pearson, deceased, and against said Onslow B. Todd, of date December 31, 1898, by virtue of which the said sheriff levied upon and seized all the right of title, interest, and estate of said Onslow B. Todd of, in, and to said 320 acres of land. The deed then recites that, after having given 20 days' notice of the time and place of sale and of the real estate to be sold by advertisement in the Current Wave, a newspaper published in said county, he did on the 15th day of March, 1899, during the session of the circuit court of said county, at its March term, 1899, expose said land at public auction for sale for ready money, and, William H. Snyder being the highest and best bidder at and for the price of $50, the same was stricken off and sold to him for that sum. The deed was duly acknowledged before the circuit court on the 16th of March, 1899, and filed for record on the same day. The plaintiff's objection to this deed will be noticed in the discussion of the case. The defendants then offered in evidence a warranty deed from the said William H. Snyder and wife to the Bunker Lumber Company of date May 2, 1904, duly acknowledged and recorded February 1, 1905. The defendants then rested. Thereupon the plaintiff offered in evidence the original files in the attachment suit of William H. Snyder and James B. Pearson, executors of the last will and testament of Sarah Pearson, deceased, against Onslow B. Todd, being the suit upon which the defendants' sheriff's deed is based; also, so, a duly certified copy of the judgment and proceedings of the common pleas court for the second division of the second judicial district of the state of Ohio, which includes Clark county in the state of Ohio, upon which said judgment and action by attachment in the circuit court of Shannon county was based; also, a duly certified copy of the record of the probate court of Clark county, Ohio, showing the final settlement of said William H. Snyder and James B. Pearson, executors of the last will and testament of Sarah Pearson, deceased, of date January 31, 1898, and especially the order of publication in the circuit court of Shannon county in the attachment case of said Snyder and Pearson against Onslow B. Todd. From all of which it appears, in substance, that said William H. Snyder and James B. Pearson were appointed executors of the last will and testament of Sarah Pearson, deceased, by the probate court of Franklin county, Ohio, on the 5th day of August, 1892, but afterwards, to wit, on January 31, 1898, having fully administered said estate, they made their final settlement and were discharged. The said William H. Snyder and James B. Pearson, as executors of the last will of the said Sarah Pearson, deceased, began an action in the circuit court of Shannon county, Mo., against said Onslow B. Todd, and in their petition alleged that said plaintiff, as such executors, on the 26th of February, 1894, obtained a judgment against said Onslow B. Todd, in the common pleas court of Clark county, Ohio, in the sum of $2,164.16, a copy of which said judgment was filed with the petition, and made a part thereof, which said judgment was by the defendant or sheriff credited with $530.07, and further alleged that the defendant Todd was a nonresident of Missouri, so that the ordinary process of law could not be served upon him; that said Todd is the owner in fee of the S. ½ of section 1, township 28, range 6, in Shannon county, Mo., and prayed judgment in the sum of $1,634.14, and that an attachment might issue against said land. At the same time, the plaintiffs filed an affidavit by the attorney of said plaintiffs stating that the said plaintiffs had a just judgment against said Todd, and that the amount due after allowing all just credits and set-offs was $1,634 and that the defendant was a nonresident of this state. A writ of attachment was duly issued, and said land levied upon, and at the return of said writ on the default of the said ...