Rumfelt v. O'Brien

• Citation: 57 Mo. 569
• Parties: COLUMBUS C. RUMFELT, Plaintiff in Error, v. LAWRENCE O'BRIEN, Defendant in Error.
• Decision Date: 31 October 1874
• Court: United States State Supreme Court of Missouri

57 Mo. 569

COLUMBUS C. RUMFELT, Plaintiff in Error,

v.LAWRENCE O'BRIEN, Defendant in Error.

Supreme Court of Missouri.

October Term, 1874.

Error to Scott Circuit Court.

Lewis Brown and S. M. Green, for Plaintiff in Error: cited, M'Clay vs. Freeman, 48 Mo., 234; Howard vs. Thornton, 50 Mo., 291; Lenox vs. Clark, 52 Mo., 117; Fithian vs. Monks, 43 Mo., 502; Durosett vs. Hale, 38 Mo., 346; Janney vs. Spedden, Id., 395; Harris vs. Grodner, 42 Id., 159.

Louis Houck, for Defendant in Error.

I. The judgment cannot be collaterally assailed. (Freeman vs. Thompson, 53 Mo., 190.)

II. A judgment and its recitals must be treated as correct until reversed. (Bernecker vs. Miller, 44 Mo., 102.)

III. The record of a judgment in partition which recites that all the parties named had been duly notified of the suit, is conclusive. (Latrielle vs. Dorleque, 35 Mo., 233.)

And where the record shows a finding of the court, the fact cannot be collaterally attacked. (Kane vs. McCown, 55 Mo., 20; Cooper vs. Reynolds, 10 Wall., 321; Freeman Judg., § 130, et seq.)

IV. The purchaser at sheriff's sale looks to the judgment, levy and sheriff's deed. All other questions are between the parties to the judgment and the sheriff. (Lenox vs. Clark, 52 Mo., 115.)

LEWIS, Judge, delivered the opinion of the court.

Petition in ejectment was filed August 14, 1872, for a lot in the town of Benton. The answer was a general denial in the usual form.

Trial was had before the court sitting as a jury. The plaintiff introduced a deed of the premises to himself and John A Hinton, from James Parrott and wife, dated July 2, 1860, and proved the grantee's possession in 1861. For the purpose, it is presumed, of fixing in advance the character of defendant's claim, he introduced detached parts of the record of a suit instituted August 10th, 1863, in the Scott Circuit Court, in which the Union Bank of Missouri was plaintiff and Hinton and Rumfelt, with others, were defendants. These included, in the following order, the judgment, petition, summons and return, several orders of publication with their proofs, and copies of the bill of exchange and protest upon which the suit was founded. Here the plaintiff rested, having exhibited nothing, so far as can be discovered, to connect the defendant's possession with these proceedings. The defendant then introduced a sheriff's deed to William C. Hayden, under the Union Bank judgment, conveying the lot in controversy as the property of Hinton and Rumfelt, and bearing date April 12, 1867. It was admitted that defendant claimed title and possession by conveyance from the sheriff's grantee. The court's finding and judgment were for the defendant.

Whatever doubts might have arisen at the close of the plaintiff's testimony as to the sufficiency of his prima facie case, the defendant furnished a solution of them in his introduction of the sheriff's deed. He thus admitted that the plaintiff had the title of the property at the date of the execution sale. (Brown vs. Brown, 45 Mo., 412.) From that moment the controversy was to be determined by the competency of the sheriff's deed to divest the plaintiff's title.

The plaintiff insists that the judgment under which the sheriff sold was void as to Rumfelt, for want of notice. The return on the summons introduced by plaintiff exhibited personal service on the defendants, Hinton and Levi S. Green, adding, “the other said defendants not found in my county.” The petition stated that Rumfelt and two other defendants, Allen and Parrott, were non-residents, and this was sworn to by plaintiff's attorney. Orders of publication, each of which is claimed to have been tainted with irregularity, were made and the publications proved against these three. The judgment rendered April 8th, 1865, recited as follows: “The plaintiff, by her attorney, comes and dismisses this suit as to defendant, Thomas J. Allen, and the court being satisfied that the order of publication made at the last term of this...