Skalecki v. Small, s. 17866

• Decision Date: 14 July 1992
• Docket Number: 17885,Nos. 17866,s. 17866
• Citation: 832 S.W.2d 954
• Parties: K.M. SKALECKI, et al., Plaintiffs-Respondents, v. Mark H. SMALL, et al., Defendants-Appellants.
• Court: Missouri Court of Appeals

Page 954

832 S.W.2d 954

K.M. SKALECKI, et al., Plaintiffs-Respondents, v.Mark H. SMALL, et al., Defendants-Appellants.

Nos. 17866, 17885.

Missouri Court of Appeals,

Southern District,

Division Two.

July 14, 1992.

James P. Tierney, Cynthia W. Scherb, Kansas City, for defendants-appellants.

Ronald K. Carpenter, Philip J. Morgan, Phillips, McElyea, Walker & Carpenter, P.C., Camdenton, for plaintiffs-respondents.

FLANIGAN, Chief Judge.

DefendantsMark H. Small, Kathleen O'Sullivan, and Sylvia M. Wiedeman appeal from a default judgment entered on March 12, 1991, in the Circuit Court of Camden County.The judgment purports to quiet the title to a certain lot in Camden County.The three named defendants and their deceased sister were the grantees in a deed, executed on March 20, 1971, by which they obtained record title to the lot from their parents.The defendants filed a motion to set aside the default judgment.They also appeal from the order denying their motion.

The judgment was entered following an unsuccessful attempt to serve the three named defendants in Johnson County, Kansas, and following service by publication purportedly pursuant to Rule 54.17.¹Defendants contend that the default judgment is void because the service by publication was defective.For the reasons which follow, this court agrees.

On November 16, 1990, plaintiffsK.M. Skalecki and Thomas Dempsey instituted this action in the Circuit Court of Camden County against defendantsMark H. Small, Jr., Kathleen O'Sullivan, Sylvia Wiedeman, Mary Ellen McGilley, and additional and unknown defendants, seeking to quiet title to the lot.Also on November 16, 1990, a "Summons for Personal Service Outside the State of Missouri," directed to defendant Small and containing the address 4600 West 65th Street, Shawnee Mission, Kansas, 66208, was issued.On November 20, 1990, summonses containing the same address were issued to the other three named defendants.

On December 10, 1990, each of the four summonses was returned by the Sheriff of Johnson County, Kansas, certifying that the respective defendant was not found in Johnson County and that he had not served the summons at the stated address.On January 7, 1991, an order of publication of notice was issued by the Clerk of the Circuit Court of Camden County, and the notice was published on four consecutive weeks, the first publication taking place on January 11, 1991.

The petition alleged that the four named defendants were grantees in the 1971 deed and also in prior deeds covering the land.It alleged that plaintiffs' title was derived by adverse possession pursuant to § 516.070, "the 31-year statute," and § 516.010, "the 10-year statute."The petition made no mention of the address of any of the named defendants.There was no statement that the address of any of the named defendants was unknown.The Shawnee Mission address was not mentioned anywhere in the petition.The petition made no statement concerning whether any of the named defendants was a resident or nonresident of Missouri.

At the bottom of the petition was the affidavit of plaintiffs' attorney, Ronald K. Carpenter, who swore that the facts stated in the petition were true according to his best information, knowledge and belief.

The published notice informed the defendants that they were required to "plead, appear and defend against" the petition within 45 days after January 11, 1991, or judgment by default would be rendered against them.

On March 12, 1991, the court appointed an attorney to represent the unknown defendants and to represent defendants, if any, who might be in military service and to be guardian ad litem for minors and those who might be under disability.On the same day the guardian ad litem filed an answer for those unknown defendants.The answer stated that the guardian had no information concerning "the matters herein except as set out in the petition" and asked the court to require strict proof of the plaintiffs.

Also on March 12, 1991, the judgment was entered which recited the appearances of the plaintiffs in person and by their attorney and the default of the named defendants.No evidence was introduced at that hearing.

On March 18, 1991, Attorney Carpenter wrote a letter to defendantKathleen O'Sullivan at the following address: 437 East 64th Terrace, Kansas City, MO 64131.Mrs. O'Sullivan received the letter.The letter enclosed a copy of the judgment of March 12, 1991.The letter stated that Carpenter represented the plaintiffs, that O'Sullivan's address had been provided to Carpenter by a neighbor, and that Carpenter's clients, the plaintiffs, had purchased the lot at a tax sale on August 22, 1988, and were the owners.The letter further stated:

This is the same property that you, Mr. Mark H. Small, Jr., Mrs. Sylvia M. Wiedeman and Mrs. Mary Ellen McGilley, owned prior to this tax sale....My clients have taken possession of the property, however, we realize that you have furniture and perhaps some other personal belongings located within the house and that you would probably like to retrieve them.²If you would contact the undersigned, I would be happy to make arrangements with you to allow you access into the house for the purpose of removing your personal property.

Service by publication may be accomplished pursuant to Rule 54.17 or its statutory counterpart, § 506.160.3. D.L.G., Sr. v. E.L.S., 774 S.W.2d 477, 482, n. 2(Mo. banc 1989);Rule 54.18.

"Statutes providing for service of process by publication are strictly construed, and when reliance is placed upon a judgment obtained upon constructive notice it must appear that such notice was given in strict compliance with the statutory provision."Driscoll v. Konze, 296 S.W.2d 31, 33(Mo.1956).Similarly, for service based on Rule 54.17, strict compliance with the rule is required.In re Marriage of Breen, 560 S.W.2d 358, 364(Mo.App.1977).Defective or improper service by publication is the equivalent of no service at all.In Interest of K.K.M., 647 S.W.2d 886, 889(Mo.App.1983).

Rule 54.17 reads, in pertinent part:

(a) Service by publication shall be by notice published by order of the court or clerk thereof.

(b) Such order shall issue when the party desiring service by publication files a statement verified by him or by a person on his behalf, stating (1) that one or more of the persons to be served are unborn or their names are unknown to the party desiring service by publication or facts showing why service cannot be obtained under Rule 54.13,Rule 54.14 or Rule 54.16, and (2) if known, the address of the party to be served or in lieu thereof a statement that said address is unknown.It shall be sufficient to name or describe unborn or unknown parties as the heirs, grantees or successors of the person to whom the property to be affected was last known to have been transferred.(Emphasis added.)

Rule 54.13 deals with personal service within the state, Rule 54.14 deals with personal service outside the state, and Rule 54.16 deals with service by mail.

"A party requesting service by publication upon a known party shall file an affidavit stating that service upon the person or by mail cannot be obtained and that the address of the person to be served is unknown.Burchett v. Burchett, 572 S.W.2d 494, 502(Mo.App.1978);Rule 54.17."(Emphasis in original.)Orange v. Harrington, 649 S.W.2d 930, 933(Mo.App.1983).To similar effect seeMetmor Financial, Inc., v. Leggett, 787 S.W.2d 733, 736(Mo.App.1989).

Rule 54.17(b) requires "the filing of a verified statement setting forth facts showing why personal service or service by mail cannot be obtained."In Interest of L.G., 764 S.W.2d 89, 91(Mo. banc 1989).

If the verified statement required by Rule 54.17(b) is defective, and there is no valid service of process otherwise, the order of publication is void and the judgment is a nullity for want of jurisdiction.G.M.D. v. M.D., 610 S.W.2d 305, 308(Mo.App....