Shuck v. Moore

• Decision Date: 28 February 1911
• Citation: 232 Mo. 649,135 S.W. 59
• Parties: SHUCK v. MOORE.
• Court: Missouri Supreme Court

135 S.W. 59

232 Mo. 649

SHUCK v. MOORE.

Supreme Court of Missouri, Division No. 1.

February 28, 1911.

1. TAXATION (§ 817)—ACTION TO TRY TAX TITLE—APPEAL—RECORD.

In an action to quiet title, in which defendant set up title through a sale under a judgment for taxes, the record on appeal held sufficient to show that the tax suit was against a nonresident, that the summons therein was served by publication, and that the order of publication in that case followed the petition in using merely the initials of the defendant's given name, and that the pending action was tried on that theory.

2. PROCESS (§ 85)—SERVICE BY PUBLICATION —STATUTES.

Service of process by publication is a statutory creation in derogation of the common law, and requires that the statutory procedure shall be strictly followed.

3. TAXATION (§ 642)—ACTIONS TO COLLECT TAXES—PROCESS—SERVICE.

The action to collect taxes authorized by statute must be brought against the record owner of property by his true name, so that where process in such a suit was served on the nonresident owner by publication, and the order of publication followed the petition in designating the defendant as "A. S. W.," instead of "Anthony S. W.," which the record of the deed to him showed to be his name, no jurisdiction was obtained over him, and the tax judgment and sale and deed thereon were void.

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

Action by Ed. J. Shuck against A. E. Moore. From a decree for defendant, plaintiff appeals. Reversed and remanded.

Ed. J. Shuck, A. J. Arthur, and Robt. Lamar, for appellant. Wm. P. Elmer, for respondent.

LAMM, J.

Defendant was sued as a nonresident in the Dent circuit court to try and determine title to the N. E. ¼ of section 25, township 32, range 4 in that county, under old section 650, now R. S. 1909, § 2535, as amended. He appeared and filed answer claiming title and pleading the 10-year and 30-year statute of limitations. In pleading title his answer bases it on a sheriff's sale on a judgment for taxes. The decree vested title in defendant, and plaintiff took nothing by his suit. On due steps, plaintiff came up by appeal.

1. There is a preliminary question, viz.: On the abstract presented, can we go into matter of exception at all? The point is sufficiently developed when we state that the first 29 pages of plaintiff's abstract is built on a plan steadily condemned; that is, by commingling in one heterogeneous aggregation matter of record proper and matter of mere exception, so that we are put to picking, sorting, and choosing one kind of matter from the other, and rearranging it, with no guide but a guess tempered by the hazard of guessing wrong. An abstract made on that bad plan is in contravention of statutes, rules, and the very reason of the thing. Its unhappy results are shown in a long list of cases spread in the books, and nothing we can say will add vigor or point to warnings already given, writ large and often. The beaten way is safest. However, in this case, at page 29 of their abstract, counsel, by way of a rather belated revelation, saw the danger and wrote in a long-hand interpolation—a benediction, maybe— reading: "The preceding pages and the following page contain a full and complete statement of the bill of exceptions, together with the petition and answer." Counsel for defendant complains of the abstract as insufficient and brief the point; but he also files an abstract of his own, in which he exploits certain evidence on the theory the bill of exceptions as abstracted by plaintiff omits it. That additional abstract assumes we already have the residue of the bill of exceptions in plaintiff's abstract. In this fix, plaintiff files a motion to amend his abstract (not by bringing up new matter, but) by rearranging and suitably earmarking matter already abstracted into (1) record proper and (2) matter of exception preserved in a bill. With that motion, and to that end, he tendered a supplemental abstract. The motion was taken with the case, and through extreme and plenary grace, because of novel and persuasive features existing, the motion will be allowed and the supplemental abstract considered in connection with plaintiff's original and defendant's abstract.

2. The case lies in a nutshell. The matter threshed out below was a certain tax proceeding and sale thereunder, followed by a deed. If that was effective, the title is in defendant; if not, it is in plaintiff. There were no exception saved, nor are there issues raised here making it necessary to set out plaintiff's chain of title, nor that through which defendant claims. Hence we omit deeds constituting links in one or the other. It sufficeth to say that the common source of title was Anthony S. Wells. Plaintiff holds through him by mesne conveyances. Defendant holds through him by said tax deed and by mesne conveyances.

The record shows title at one time in "Anthony S. Wells" by a conveyance to him eo nomine. At a certain time thereafter a tax suit was brought in the Dent circuit court against "A. S. Wells" for a year's tax; the petition mentioning no year for which the tax was due. The tax bill on which the suit was founded shows the year 1880. The tax judgment is not in the record. The tax deed recites that the judgment was for the tax of 1880, and that "A. S. Wells" was sued and his title levied on, sold, and conveyed.

One of plaintiff's positions is that, because the year was not set forth in the tax petition, it was fatally defective (R. S. 1909, § 11,498), and stated no cause of action. Defendant contends that the tax bill must be read into the petition, and, when that is done, it is well enough. But, in any event (he says), absent the judgment, and present the recitals in the sheriff's deed naming the judgment year as 1880, the defect of the petition is cured.

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