Rutledge & Taylor Coal Company v. Dent

• Decision Date: 05 June 1925
• Docket Number: 24720
• Citation: 274 S.W. 30,308 Mo. 547
• Parties: RUTLEDGE & TAYLOR COAL COMPANY v. J. FRANK DENT and GEORGE A. DENT, Appellants
• Court: Missouri Supreme Court

274 S.W. 30

308 Mo. 547

RUTLEDGE & TAYLOR COAL COMPANY v. J. FRANK DENT and GEORGE A. DENT, Appellants

No. 24720

Supreme Court of Missouri

June 5, 1925

Appeal from Dent Circuit Court; Hon. L. B. Woodside, Judge.

Reversed and remanded.

Dalton & Knop for appellants.

(1) The trial court erred in holding that the judgment in favor of appellants and against respondent, quieting title to the land in question, rendered before the commencement of the present action, in which judgment the court found and decreed that appellants were the owners in fee of said land and that respondent had no right, title or interest in it, was not res adjudicata. (2) The question of fact which was actually and directly in issue in the former suit, and was there judicially passed upon and determined by the court which had competent jurisdiction, is conclusively settled by the judgment therein, so far as concerns the parties to that action and persons in privity with them, and cannot be again litigated in any future action between such parties or their privies, in the same court or any other court of concurrent jurisdiction, upon the same or a different cause of action. 23 Cyc. 1215; Edmonston v. Carter, 10 Mo. 515. (a) A judgment between the same parties on the same cause of action is res adjudicata, not only on questions actually litigated, but on all questions which could have been litigated. St. Louis v. United Rys. Co., 263 Mo 387. Seaman v. Seaman, 181 S.W. 22. (b) The doctrine of res adjudicata is based upon the principle that there should be an end to litigation and that a cause of action once duly adjudicated between parties shall protect successful parties against further vexation in regard to it. Stearns Co. v. Hewes, 256 Pa. 577. (c) A fact distinctly put in issue and directly determined by a court of competent jurisdiction as a ground of recovery cannot be disputed in a subsequent suit between the same parties, even if the second suit is for a different cause of action. Lyons v. Empire Fuel Co., 262 F. 465; Ludwick v Penny, 158 N.C. 104; Herpolsheimer v. Harvester Co., 83 Neb. 53; Foster v. The Richard Busteed, 100 Mass. 409. (3) No distinction can be drawn between judgments rendered by default on constructive service and those rendered on personal service, except such as is made by statute allowing to a defendant in a default judgment on constructive service the right to have the judgment reviewed at any time within three years from its rendition. R. S 1919, sec. 1532; State ex rel. Smith v. Clarkson, 88 Mo.App. 553; Jones v. Driskell, 94 Mo. 199. Where a court has jurisdiction to make a valid order for publication of summons, a judgment by default thereon is valid. People v. Wrin, 143 Cal. 11. (4) Where one party to a suit to quiet title in himself and the opposing party shows none, it is the duty of the court to render a decree in favor of the party proving title to the land. Southwest Land Co. v. Barnett, 240 Mo. 370; Heagy v. Miller, 187 S.W. 889; Charles v. White, 214 Mo. 187; Senter v. Lumber Co., 255 Mo. 602. (a) And where a party shows no title in himself he shows no right to oppose judgment in favor of his adversary, if his adversary makes out a prima-facie case. Skillman v. Clardy, 256 Mo. 322; Dixon v. Hunter, 204 Mo. 380. (5) Where service is by publication, even though defendant be a resident of this State, and in the petition it is stated that the defendant is a non-resident, the defendant is bound by the service. Payner v. Lott, 90 Mo. 681; State ex rel. Smith v. Clarkson, 88 Mo.App. 553; Tooker v. Leake, 146 Mo. 420; Jones v. Driskell, 94 Mo. 190.

Cope & Cope for respondents.

(1) Under our statute (Sec. 1770, R. S. 1909) service by publication may be had in the following cases, and none other so far as pertinent in the present instance: First, where the defendant is a non-resident; second, where the defendant is a corporation of another state, kingdom or country, and cannot be served in this State in the manner prescribed in this chapter. In either instance the service by publication is authorized only after the plaintiff has made the allegation in his petition or made affidavit that the defendant falls within the first or second subdivision noted. The first clause applies only to individual defendants. All that is necessary when an individual is defendant is that he be a non-resident. The second clause applies only to corporations. If the defendant is a corporation then the mere fact that it is a corporation of another state is not of itself sufficient; or in other words, if a corporation may be called a non-resident then the mere fact that it is a non-resident is not of itself sufficient. The statute expressly declares that it must be impossible to serve it in the manner prescribed in Chapter 21. A corporation may be a "non-resident" and yet have an officer in the State so that personal service could be had under the provisions of Sec. 1760, R. S. 1909. Jurisdiction of the defendant can be required only by a strict compliance with the statute. Parker v. Burton, 172 Mo. 85. (2) Sec. 1770, R. S. 1909, plainly says that if service by publication is sought to be had on a corporation the plaintiff must allege in his petition or make affidavit that "the defendant is a corporation of another state, kingdom or country, and cannot be served in this State in the manner prescribed in this chapter." Plaintiff in the tax suit made no such allegation; therefore, no jurisdiction was acquired. Service by publication is in no case authorized against a corporation of this State. (3) All the way through the tax suit the name of the defendant was carried simply as "Rutledge & Taylor Coal Company, Defendant." There was no legal entity before the court; therefore no valid judgment could be rendered. A civil action can be maintained only against a legal person, i. e., a natural person or an artificial or quasi-artificial person. If there is no legal entity before the court, there is no one against whom lawful judgment can be rendered, and therefore the whole proceeding is void ab initio. Weldon v. Fisher, 194 Mo.App. 580. If the defendant company is a corporation, the petition should so state; and if it is a partnership, the names of the persons composing the company should be set out. Van Natta v. Real Estate Co., 221 Mo. 374. In the tax suit in question in this case no one can tell by looking at the record therein whether the defendant was a partnership or a corporation. (4) Actions to quiet title are instituted under provisions of Art. 8, R. S. 1919, and judgments rendered in such cases are conclusive only against the persons and parties who appear and answer in such cause, or who shall have been personally served with notice; and are only prima-facie evidence against all other parties and persons. Sec. 1977, R. S. 1919. This respondent and all the other thousand parties in the quiet title suit were notified only by order of publication; and therefore under the provisions of the statute the decree rendered in the quiet title suit is only prima-facie against them in any event, and is not res adjudicata. (5) Res adjudicata does not apply unless the subject-matter is the same in both cases; in other words, the same questions must be up for determination in both actions. Fritsch Mach. Co. v. Goodwin Co., 100 Mo.App. 414. In the case at bar the respondent presents but one question for determination, and this one question is the only issue presented in the case; namely, is the tax judgment and tax deed voidable? This question could not possibly have been determined in the quiet title case for the very simple reason that the only way in which the validity of said tax judgments and deed could be reached is by direct attack, such as respondent makes in this instance. Evarts v. Mo. Lbr. Co., 193 Mo. 433. (6) Quiet title decrees are rarely, if ever, res adjudicata The very statutes which provide for this extraordinary procedure of quieting title contains an express provision that the decrees entered in such actions are conclusive (in other words, res adjudicata) only as to parties personally served or who appear and answer. Sec. 1977, R. S. 1919. Parties notified in any action by order of publication only are not bound by any adjudication, unless they appeared and contested the merits of the case. It is absolutely necessary that the same parties must have been adversaries in both cases and must have appeared in both cases in the same capacity before res adjudicata will apply. Perkins v. Goddin, 111 Mo.App. 438; Charles v. White, 214 Mo. 206.

Railey, C. Higbee, C., concurs.

OPINION

RAILEY

On June 18, 1921, the Rutledge & Taylor Coal Company, as plaintiff, filed in the Circuit Court of Dent County, Missouri, a petition against the above-named defendants, J. Frank Dent and George A. Dent, which alleges, in substance, that at all times mentioned in the petition plaintiff was a corporation, doing business under the laws of Missouri, and as such capable of suing, and liable to be sued; that on December 24, 1909, plaintiff purchased from one W. P. Robertson and wife all of the west half of northwest quarter of Section 13, Township 34 north, Range 4 west, in Dent County aforesaid, and filed their deed for record in said county on March 17, 1910, which was recorded in Book 50 at page 198; that plaintiff has never parted with its title aforesaid and is still the legal owner of said real estate.

It is alleged that on February 12, 1918, the tax collector of Dent County instituted suit against Rutledge & Taylor Coal Company" for taxes due on certain Dent County land for the year 1916. Service was had by publication. The petition in said tax suit alleged "that the defendant Rutledge & Taylor Coal Company is a non-resident of the State of Missouri, and cannot be...