Schell v. Leland

• Court: Missouri Supreme Court
• Writing for the Court: WAGNER
• Citation: Schell v. Leland, 45 Mo. 289 (Mo. 1870)
• Decision Date: 31 January 1870
• Parties: JACOB S. SCHELL et al., Defendants in Error, v. CYRUS LELAND et al., Plaintiffs in Error.

45 Mo. 289

JACOB S. SCHELL et al., Defendants in Error,

v.CYRUS LELAND et al., Plaintiffs in Error.

Supreme Court of Missouri.

January Term, 1870.

Error to First District Court.

Wm. E. Sheffield, for plaintiffs in error.

The petition should allege that the property upon which the lien was sought to be enforced, was situated in Kaw township. The Kansas City Court of Common Pleas is a court of inferior and limited jurisdiction, and could take nothing by implication, and nothing will be presumed in favor of its jurisdiction. (Bloom v. Burdick, 1 Hill, 139; Bridge et al. v. Bracken, 3 Chand. 75; Pelton v. The Town of Blooming Grove, 3 Wis. 310; Simmons v. De Barre, 8 Abb. Pr. 269; 1 Johns. Cas. 2; Walker v. Turner, 9 Wheat. 549, Curtis' ed., vol. 6, p. 178; McCormick v. Sullivant, 10 Wheat. 192; Statey v. Bank of America, 4 Dallas, 111; Kemp's lessee v. Kennedy, 5 Cranch, 185; Schulenberg et al. v. Bascom et al., 38 Mo. 188; McCune et al. v Hull et al., 20 Mo. 596; Patrick et al. v. Abeles, 27 Mo. 184.)

S. P. Twiss, for defendants in error.

I. The order of publication was properly made by the clerk--it being his duty to issue such order at any time during vacation upon the filing of the proper affidavit. (Gen. Stat. 1865, ch 167, §§ 13-15; Pomeroy et al. v. Butts et al., 31 Mo. 419.)

II. Even if this were not true, the appearance of Leland in in court, by attorney, cured and waived any defect or irregularity attending the order of notice or its publication. (Buxton et al. v. Arnold et al., 9 How. 455; Powers v. Browder's Adm'rs, 13 Mo. 154; Davis v. Wood, 7 Mo. 162.)

III. The Kansas City Court of Common Pleas had jurisdiction over the subject-matter of the suit (Sess. Acts 1858-9, pp. 353-4, § 5, p. 355, § 15), and the court will take judicial knowledge of the fact that Kansas City is in Kaw township, Jackson county, State of Missouri. (Price v. Page, 24 Mo. 65; State v. Warrell, 25 Mo. 205, 212.)

WAGNER, Judge, delivered the opinion of the court.

This was a suit instituted in the Kansas City Court of Common Pleas to enforce a mechanic's lien. Several irregularities appear in the record, but, from the view we have taken of the case, they require no special comment. The petition was filed with the clerk of the Common Pleas Court on the 22d day of December, 1866, and on the 24th day of the same month a writ of summons was issued, directed to the marshal of said court, and made returnable on the fifth Monday in April next ensuing. The marshal did not hold the writ till the return day, but, on the 8th day of February intervening between the issuance of the writ and the day set for its return, he returned the same with the indorsement that the defendant Leland was not found in Kaw township, Jackson county.

After this return, and in the same month (February), the plaintiff filed his affidavit before the clerk, in vacation, stating that the defendant was a non-resident, and asking for an order of publication, which was made out and issued by the clerk, and published, and proof thereof made at the April term. At that term an attorney appeared and moved that Wilhite, who appears to have had some interest in the matter, be made a party defendant, which was sustained. No answer was filed, and judgment was rendered for plaintiffs. After the rendition of the judgment, the defendant Leland appeared, and stated that his appearance was special for the purpose of moving the court to arrest the judgment, on the ground that the defendant was never brought into court; that the order of publication was improperly entered by the clerk in vacation; and that the petition did not state facts sufficient to give the court jurisdiction of the subject-matter of the suit, because it failed to state that the premises in controversy were situated in Kaw township. This motion was overruled, and the case was then taken to the First District Court, where the judgment of the Common Pleas Court was affirmed.

The first question we will consider is the proceeding for obtaining an order of publication. The statute provides that in suits for partition, divorce, and attachment, and for the foreclosure of mortgages and deeds of trust, and for the enforcement of mechanics' liens, and all other liens against either real or personal property, and in all actions at law and in equity which have for their immediate object the enforcement or establishment of any lawful right, claim, or demand to or against any real or personal property within the jurisdiction of the court, if the plaintiff, or other person for him, shall allege in his petition, or file an affidavit, stating that part or all of the defendants are non-residents of the State, or have absconded or absented themselves from their usual place of abode in this State, or that they have concealed themselves, so that the ordinary process of law can not be served upon them, the court or clerk, in vacation, shall make an order directed to the non-residents or absentees, notifying them of the commencement of the suit, and stating briefly the object and general nature of the petition, and, in suits in partition, describing the property sought to be partitioned, and requiring such defendant or defendants to appear on a day to be therein named, and answer the petition, or that the petition will be taken as confessed; and where the court shall be required to make an order of publication, returnable to the next term thereof, there shall not be sufficient time to make publication of such term, the court shall make the order returnable to the first term thereafter that will allow sufficient time for its publication. (2 Wagn. Stat. 1008, § 13.)

The above section is the only one where provision is made for the court or clerk, in vacation, issuing an order of publication. The order can only be made by strictly complying with the statute; for, in all cases where constructive notice is substituted for actual notice, strict compliance is required....