Smith v. Kiene

• Decision Date: 30 November 1910
• Citation: Smith v. Kiene, 231 Mo. 215, 132 S.W. 1052 (Mo. 1910)
• Parties: BRYCE SMITH v. LUDWIG W. KIENE et al., Appellants
• Court: Missouri Supreme Court

132 S.W. 1052

231 Mo. 215

BRYCE SMITH v. LUDWIG W. KIENE et al., Appellants

Supreme Court of Missouri, First Division

November 30, 1910

Appeal from Jackson Circuit Court. -- Hon. Hermann Brumback, Judge.

Affirmed.

E. W Shannon and L. A. Laughlin for appellants.

(1) The judgment of March 23, 1904, is void because entered without notice. Phelps v. Brumback, 107 Mo.App. 16; Parker v. Johnson, 22 Mo.App. 516; Jackson v Fulton, 87 Mo.App. 228; Laun v. Ponath, 91 Mo.App. 271; Roberts v. Improvement Co., 126 Mo 460; Jones v. Yore, 142 Mo. 38; Smith v. Kander, 85 Mo.App. 33; Ault v. Bradley, 191 Mo. 709. (2) The form of judgment is so vague as to make the judgment void. Moody v. Deutsch, 85 Mo. 237; Freeman on Judgments (4 Ed.), sec. 50a; 11 Ency. Pl. and Pr. 951; Aultman v. Wirth, 45 Ill.App. 614; Goldberg v. Markowitz, 94 A.D. 237; Ferrell v. Simmons, 63 W.Va. 45. (3) The judgment entered on March 23d is not a final judgment. Boothe v. Loy, 83 Mo.App. 601; Russell v. Railroad, 154 Mo. 428; Cramer v. Barmon, 193 Mo. 327; Crowe v. Peters, 63 Mo. 429; McHoney v. Insurance Co., 44 Mo.App. 425; Kabrick v. Insurance Co., 48 Mo.App. 393; Badgley v. St. Louis, 149 Mo. 122; Kansas City v. Mitchener, 85 Mo.App. 36. (4) The execution in No. 7666 is void because no certificate of purchase was issued. Davis v. Evans, 174 Mo. 307; Bryant v. Russell, 127 Mo. 422; Bradley v. Judd, 127 Mo. 434. (5) The judgment of March 23d was void because the petition was amended after publication of the order to non-resident defendants. Holland v. Adair, 55 Mo. 49; Janney v. Spedden, 38 Mo. 395; Roberts v. St. Louis M. L. I. Co., 26 Mo. 460; Railroad v. Atchison, 137 Mo. 218; Hinkle v. Lovelace, 204 Mo. 208, 226. (6) The sheriff's deed in case No. 33184 is void. Warren v. Manwarring, 173 Mo. 21.

Dana, Cowherd & Ingraham for respondent.

(1) Appellants, having had the opportunity to raise in the original case, and having there raised, each and every point here urged, and having had the judgment of the court thereon, and having filed a motion to quash the execution, motion for new trial and motion in arrest of judgment, which were overruled, and appeal allowed to the Supreme Court, and the appeal not perfected, cannot have collaterally in this case another hearing of such matters. Shelbina Hotel v. Parker, 58 Mo. 329; Kane v. McCoon, 55 Mo. 200; Yates v. Johnson, 87 Mo. 217; Beckner v. McLinn, 107 Mo. 288; State ex rel. v. Christy, 83 Mo. 374. (2) There is no merit in appellants' first point that judgment of March 23d is void because entered without notice. The parties appeared and filed various motions against the judgment and appealed from it. This not only waives the notice, like entry of appearance waives the issue and service of a summons, but also shows that they did actually have notice. Loring v. Groomer, 110 Mo. 632. (3) There is no merit in appellants' second proposition that the judgment is void because it is not a personal judgment against anybody. McDonald v. Frost, 99 Mo. 48; Black v. Rogers, 75 Mo. 448; Moody v. Deutsch, 85 Mo. 244. We were not entitled to a personal judgment in this case. Siebert v. Allen, 61 Mo. 488; Kansas City v. Railroad, 77 Mo. 186; Granite Co. v. Bobb, 37 Mo.App. 486; City v. Miller, 66 Mo. 467. We now can test judgments by matter of substance rather than the measure of any particular draft or form. Farley Bros. v. Cammann, 43 Mo.App. 174; Trumbo v. Flournoy, 77 Mo.App. 324; Lane v. Doud, 172 Mo. 176. There can be no personal judgment in tax suits even where there is personal service. A sale under a valid judgment in such cases transfers to the purchaser only the title and interest of the defendant to the suit. Milner v. Shipley, 94 Mo. 106; Carr v. Coal Co., 96 Mo. 149. (4) There is no merit in appellants' third proposition that the judgment of March 23d is not a final judgment, in that the suit was based on two counts, and this judgment is upon the second count only. The right to reimbursement or foreclosure of the lien given on the land does not commence to run until the title acquired by the tax deed fails, that is, until it is adjudged bad by a court of competent jurisdiction. Railroad v. Alexander, 49 Ark. 192; McClure v. Warner, 16 Neb. 447; Bryant v. Esterbrook, 16 Neb. 217; Otie Co. v. Brown, 16 Neb. 295; Shoenheit v. Nelson, 16 Neb. 235; Pitkin v. Reibel, 104 Mo. 513.

OPINION

WOODSON, J.

This is an action of ejectment to recover the possession of a certain lot situate in Kansas City, and particularly described in the pleadings. There was judgment for plaintiff, and defendants appealed. The facts are few and are practically undisputed; and are substantially, as stated by counsel for appellants, as follows:

"This is an action of ejectment brought by Bryce Smith against Ludwig W. Kiene, his wife and daughter, Willie Kiene, to recover possession of a lot of ground in Kansas City, Missouri, having a frontage of twenty-seven feet on Eighteenth street, and extending back from the street to the depth of one hundred feet. The property is a part of lots 1 to 4, block 4, Evans' Addition, and lies between McGee and Oak streets, near the Belt line.

"The common source of title of the land, except the east one foot, is Wilhelmina Kiene. She was the first wife of Ludwig W. Kiene, one of the defendants. Wilhelmina Kiene acquired the title to the ground by warranty deed in 1879. She died in 1881 or 1882, and left surviving her, her husband, Ludwig W. Kiene, and Hugo L. Kiene, Dora C. Kiene, Willie Kiene, Bertha Merkel, now wife of Julius Merkel, Emma Dannell, now wife of Richard Dannell, and Edith Feinup, now wife of Fred Feinup, her children. Ludwig W. Kiene married again after the death of his first wife, and with his second wife was living in a cottage on the ground at the time of the commencement of this action.

"On December 12, 1899, the Barber Asphalt Paving Company obtained a judgment in a suit in the Jackson Circuit Court (No. 33184) on a special taxbill for $ 236.60 against the east twenty-seven feet of the west fifty-seven feet of lot 1, being that part of the ground in controversy fronting on Eighteenth street and extending back from the street to the depth of twenty-five feet. A special execution was issued on this judgment on October 16, 1901, and on November 30, 1901, the land was sold by the sheriff. The sheriff's report of sale recites that Bryce Smith was the highest bidder, but the land was sold to B. Howard Smith. A certificate of purchase was given by the sheriff to Bryce Smith. The land not being redeemed from the sale on December 29, 1902, a sheriff's deed was given to Bryce Smith, conveying the east twenty-seven feet of the west fifty-seven feet of lot 1.

"All the property in question was sold for city taxes in 1897. Not being redeemed, a tax deed was given by the city treasurer on November 9, 1899, to L. M. Smith, daughter of B. Howard Smith, conveying the land for the taxes of 1897. She afterwards married George M. Hartmann, and in 1902, she brought a suit in ejectment in the Jackson Circuit Court (No. 7666) as L. M. Hartmann against Ludwig W. Kiene, his wife and Willie Kiene. The first count of the petition was in the usual form for ejectment, and the second count alleged that the title of the plaintiff was derived through a tax deed and that the plaintiff had paid out various sums of money for taxes, aggregating $ 289.56, and prayed that in the event that the tax deed was declared void said sum be declared a lien on the land.

"The case came on for trial on December 9, 1902, and the court held the tax deed void and instructed the jury to find for the defendants on the first count. Leave was given plaintiff to file an amended petition making the heirs of Wilhelmina Kiene parties defendant, and the case was continued. On December 20, 1902, plaintiff filed a second amended petition, making the other children of Wilhelmina Kiene parties defendant. This amended petition in the first count sets out a cause of action in ejectment against Ludwig W. Kiene, his wife and daughter, Willie, and in the second count alleges that there has been a trial on the first count and the plaintiff defeated, for the reason that the tax deed is void on its face, and prays for a lien on the property for the taxes paid, aggregating $ 340.58.

"On February 21, 1903, an order of publication was obtained for Emma Dannell, Richard Dannell and Minnie Kiene. There was personal service on the other defendants. Proof of publication was filed April 18, 1903, and on March 5, 1904, the case was heard. Plaintiff was permitted to amend her petition by inserting the taxes paid for the year 1903, and a personal judgment was entered against the defendants for $ 889.99 on both counts of the petition. On March 23, 1904, without notice to the defendants, the court set aside the former judgment of March 5th, and entered a new judgment, nunc pro tunc. By this latter judgment, there was no finding on the first count of the petition. On the second count judgment was rendered in favor of the plaintiff for $ 889.99, and the same was made a lien on the property. On November 9, 1904, a special execution was issued on this judgment. The property was advertised and sold under this execution on December 23, 1905, to Bryce Smith. A deed was given by the sheriff to Bryce Smith on the day of the sale and on the following day this action of ejectment was begun."

There are some additional facts which will be noted in the opinion in connection with the discussion of the propositions to which they relate.

I. The first insistence of counsel for appellants is that the judgment of nunc pro tunc of March 23, 1905, is void, because it was rendered without notice to them.

This insistence is untenable for two reasons: First, the defendants there, ...