Skelton v. Sackett

• Decision Date: 21 March 1887
• Citation: Skelton v. Sackett, 91 Mo. 377, 3 S. W. 874 (Mo. 1887)
• Parties: Skelton et al. v. Sackett, Appellant
• Court: Missouri Supreme Court

3 S.W. 874

91 Mo. 377

Skelton et al. v. Sackett, Appellant

Supreme Court of Missouri

March 21, 1887

Appeal from De Kalb Circuit Court. -- Hon. Jos. P. Grubb, Judge.

Reversed.

J. F Harwood and Ramey & Brown for appellant.

(1) Had the party intended as defendant been before the court, he must have pleaded the misnomer, or he would be bound by a judgment rendered against him in the name by which he was sued, otherwise the "court will take care that he is not prejudiced by any misnomer of his adversary." Waterbury v. Myther, 16 Wend. 611; Entrekin v Chambers, 11 Kan. 368. And notice by publication by a wrong name is not sufficient to bring him before the court. Entrekin v. Chambers, supra. "Every person is presumed to have a christian name until the contrary is made to appear by proper averment." If initials are used instead, it is presumed to be a misnomer. Gardner v. The State, 4 Ind. 632. The above rule may be subject to an exception made in an English case, that where a single vowel immediately precedes a surname, the court will understand such vowel to be the christian name of the party. Kinnersly v. Knott, 7 D. and L. 128. If the above exception applied to this case, it would be fatal to plaintiffs' title, for it would show that the judgment depended on to sustain the title was against a different person than the owner of the land. (2) There is no evidence in this case that Q. R. Noland and Quinces R. Noland, the owner of the land, are one and the same person, and this fact will not be presumed. Loudon v. Walpole, 1 Ind. 321; Bennett v. Libhart, 27 Mich 489.

Haynes & Haynes for respondents.

OPINION

Norton, C. J.

This is a suit in ejectment by the widow and heirs of Charles W. Skelton to recover possession of the west half of northwest quarter of section 5, township 27, range 30, in De Kalb county. In support of their title, plaintiffs put in evidence an exemplification, duly authenticated, of letters patent of the United States, dated in 1856, granting the above described land to one Quinces R. Noland; they also put in evidence a tax deed reciting in substance that, on the eleventh of October, 1878, judgment was rendered in the De Kalb county circuit court in favor of the state at the relation of the collector of said county, and against Q. R. Noland and Joseph A. Woodward, for the sum of $ 12.75, delinquent taxes on the said land for the year 1876, and costs taxed at $ 20.55, which judgment was declared to be a lien on said land, and that, in pursuance of an execution issued on said judgment, the land was sold to Charles W. Skelton for the sum of $ 1.45. This deed was admitted in evidence without objections. Evidence was introduced by plaintiffs showing that said Charles Skelton died intestate, and that plaintiffs were his heirs.

Defendant introduced in evidence the record and proceedings in the tax suit, from which it appeared that the suit was brought against Q. R. Noland and Joseph A. Woodward; that it was alleged in the petition that they were non-residents of the state; that defendants were notified by publication in a newspaper of the pendency of the suit, and not otherwise; that defendants did not appear in said suit, and that in all the proceedings in said suit the name of said Noland appeared as Q. R. Noland, and not otherwise. The defendant offered to prove that all the taxes on said land for the year 1876, had been paid prior to the bringing of said suit, which the court, on objection of plaintiffs, refused to receive.

On this state of the case the court instructed the jury that plaintiffs were entitled to recover, and judgment was rendered accordingly, from which defendant has appealed, and contends that the circuit court, in virtue of the tax suit against Q. R. Noland and Joseph A. Woodward, and the order of publication of notice made therein, did not acquire jurisdiction of Quinces R. Noland; that no presumption in law is to be indulged that Q. stands...