Rosenberger v. Gibson

• Decision Date: 19 November 1901
• Citation: 165 Mo. 16,65 S.W. 237
• Parties: ROSENBERGER v. GIBSON et al.
• Court: Missouri Supreme Court

65 S.W. 237

165 Mo. 16

ROSENBERGER v. GIBSON et al.

Supreme Court of Missouri, Division No. 1.

November 19, 1901.

JUDGMENT — VALIDITY — COLLATERAL ATTACK — VOID SERVICE — STIPULATIONS — ESTOPPEL.

1. Under Rev. St. 1899, § 570 (Rev. St. 1879, § 3489), providing for service of summons by leaving a copy of the petition and writ at defendant's usual place of abode, with some person of his family over 15 years of age, a judgment by default on failure of return of service of summons to show that a copy of the petition and writ was left "at the usual place of abode" of defendant is void, and may be attacked in a suit based thereon.

2. A stipulation admitting the rendition of a judgment, the basis of a suit, does not preclude the introduction of the whole record in the case in which the judgment was rendered, to determine its validity.

3. Where defendants in a suit for realty based on a judgment do not claim under the person against whom the judgment was rendered, they are not estopped by any stipulation made by such person from questioning the validity of the judgment.

Appeal from circuit court, Montgomery county; E. M. Hughes, Judge.

Action by Emil Rosenberger against Robert N. Gibson and others. From a judgment in favor of defendants, plaintiff appeals. Affirmed.

H. W. Johnson and E. P. Rosenberger, for appellant. G. Pitman Smith and J. D. Barnett, for respondents.

BRACE, P. J.

This is an appeal by the plaintiff from a judgment of the Montgomery county circuit court, rendered on the 27th of December, 1897, dismissing his bill, and for costs in favor of the defendants. The suit was instituted in said court, at Danville, on the 9th of October, 1889, against Hugh B. Gibson, Mary B. Gibson, George Palmer, and Alexander Mudd, as defendants, and, on stipulation, transferred to said court at Montgomery City. Pending the suit the said defendants Hugh B. Gibson and Mary B. Gibson died, and, their death having been suggested, the defendants Robert N. Gibson, Thomas N. Gibson, and Elizabeth J. Hunter, the only children and heirs at law of the said Hugh B. and Mary Gibson, were made parties defendant in their stead. The plaintiff on the 27th of May, 1895, filed the amended petition on which the case was tried, charging, in substance, that the said Hugh B. Gibson and Mary B. Gibson were married about 50 years ago in Ohio county, in the state of Indiana, where they resided until the year 1877 or 1878, when they moved to the state of Missouri; that Hugh B. Gibson bought of one H. E. Dodd 43.3 acres of land situate in said county of Ohio and state of Indiana, and received a deed therefor, dated September 6, 1855; that in the year 1875 the said Hugh B. Gibson was largely indebted and insolvent, and ever since has been insolvent; that, among others, he was indebted to one Hester Ann Barker on a promissory note long past due; that on the 30th of October, 1876, for the purpose of hindering, delaying, and defrauding his creditors, the said Hugh B. Gibson conveyed said tract of land to his wife, the said Mary B. Gibson, without any consideration; that afterwards, in April, 1878, he sold said tract of land so conveyed to his wife, and with the identical money realized from the sale thereof purchased the S. E. ¼ of section 21, township 49, range 4, in Montgomery county, Mo., and had said land conveyed to his wife, the said Mary B. Gibson; that on the 13th day of October, 1887, the said Hugh B. and Mary B. Gibson conveyed the said S. E. ¼ of section 21 to the defendant George Palmer in trust to secure the payment to defendant Alexander Mudd of $500 and interest, which indebtedness remained due and unpaid; that said Mudd loaned said money in good faith, without knowledge of any fraud practiced by the said Hugh B. Gibson on his creditors; that the said Robert N. Gibson, Thomas N. Gibson, and Elizabeth J. Hunter are now in possession of the premises; that the said Hester Ann Barker obtained a judgment on her said indebtedness against the said Hugh B. Gibson before he left the state of Indiana, which remains unpaid; "that on the 2d of May, 1881, the said Hester Ann Barker obtained in this court a judgment against the said Hugh B. Gibson for $221.15 and costs, based on the judgment so obtained against the said Hugh B. Gibson"; that under an execution issued on said judgment all the right, title, and interest of the said Hugh B. Gibson in and to the said S. E. ¼ of section 31, township 49, range 4, except 16½ acres in a square in the northeast corner of said tract, was sold, and the plaintiff became the purchaser thereof, and received a sheriff's deed therefor. Wherefore plaintiff prays that the defendants Robert N. Gibson, Thomas N. Gibson, and Elizabeth J. Hunter be devested of the title thereto, and that the same be vested in plaintiff, subject to the lien of said deed of trust. To the amended petition the defendants Palmer and Mudd filed no answer. The other defendants, Robert N. Gibson, Thomas N. Gibson, and Elizabeth J. Hunter, on January 4, 1897, filed their joint amended answer thereto, denying the allegations thereof, and averring, in substance, that the said Mary B. Gibson died testate, seised in fee simple of said real estate, and devised the same to the said defendants; that the same was purchased for her by her brother Robert, and was paid for partly by the proceeds from the sale of a tract of land owned by her in Indiana, purchased from one Dodd, and paid for with money given to her by her father, Thomas Nelson, late of the state of Indiana, deceased, as an advancement, and partly with money advanced to her by her said brother and her children; that the said Hugh B. Gibson never contributed anything to the purchase of said land in Indiana, and had no interest whatever in the premises in question, which is of the value of at least $5,000, to which it has been enhanced by improvements paid for by the earnings of the said Mary B. Gibson and her adult children; "that, if any judgment appears of record in the circuit court of Montgomery county in favor of Hester Ann Barker and against Hugh B. Gibson, the...