South Missouri Pine Lumber Company v. Carroll
| Decision Date | 03 March 1914 |
| Citation | 164 S.W. 599,255 Mo. 357 |
| Parties | SOUTH MISSOURI PINE LUMBER COMPANY v. HENRY S. CARROLL et al., Appellants |
| Court | Missouri Supreme Court |
Appeal from Butler Circuit Court. -- Hon. J. C. Sheppard, Judge.
Affirmed.
J. W Chilton for appellants.
(1) To entitle defendants to judgment in this action it was necessary only, that defendants show a better title derived from the agreed common source, than that claimed by plaintiff under the common source. Graton v. Land Co., 189 Mo 322; Machine Works v. Brown, 200 Mo. 219; Gage v. Cantwell, 191 Mo. 698. (2) In suits for the enforcement of the collection of back taxes against nonresident defendants, filed in vacation, the clerk of the court is authorized to issue an order of publication only when the collector, or his attorney, has alleged in his petition or in an affidavit filed in the cause, that all or a part of the defendants are nonresidents of the State. Under no other circumstances has the clerk any authority to issue an order of publication in vacation. Sec. 1770, R.S. 1909; Chilton v. Tam, 235 Mo. 498; Schell v Leland, 45 Mo. 289; Bick v. Maupin, 146 Mo.App. 596; Tooker v. Leake, 146 Mo. 419; Kelly v. Murdaugh, 184 Mo. 377; Wright v. Hink, 193 Mo. 130. Such an allegation, (whether in the petition or affidavit) to support constructive service, "must be definite and unequivocal." To allege a thing means to affirm positively, to assert, to declare, to aver such thing. Wade on Notice, secs. 1032, 1049, 1060; Williams v. Monroe, 125 Mo. 586; Chilton v. Tam, 235 Mo. 498; Keller v. Keller, 144 Mo.App. 98; Cordray v. Cordray, 91 P. 781; Oelbermann v. Ide, 93 Wis. 669; Albers v. Kozeluh, 68 Neb. 522; Gilmore v. Lampmann, 86 Minn. 493. Statutes in derogation of the common law, such as our statute authorizing constructive service of process, are against common right, are harsh in operation, and are to be strictly, even rigidly, construed. Wade on Notice, sec. 1030; Ohlman v. Saw Mill Co., 222 Mo. 62; Young v. Downey, 150 Mo. 326; Harness v. Cravens, 126 Mo. 247; Charles v. Morrow, 99 Mo. 646; Kleber's Void Judicial & Execution Sales, secs. 106, 110 and 111. It cannot be said that the omission of vital words from the pretended or intended allegation of nonresidence in the affidavit to petition in the tax suit was a mere clerical error. Bad grammar may be tolerated in law, but where there is no grammar at all, there can be no toleration, for there is nothing to tolerate. Bland v. Windsor, 187 Mo. 132. The statutory requirement of an allegation of nonresidence of defendants in a tax suit, to authorize the issuance of an order of publication, is jurisdictional. Parker v. Burton, 172 Mo. 90; Tooker v. Leake, 146 Mo. 434; Hutchinson v. Shelley, 133 Mo. 412; Blodgett v. Shaffer, 94 Mo. 671. (3) There can be but one final judgment in a cause, and it must dispose of all parties to such cause. Melcher v. Scruggs, 72 Mo. 413; McCord v. McCord, 77 Mo. 175; Spalding v. Bank, 78 Mo. 382; Bank v. St. Louis, 189 Mo. 375; Seay v. Sanders, 88 Mo.App. 484; Crow v. Crow, 124 Mo.App. 120; Blockmer v. Railroad, 137 Mo.App. 479; Glass Co. v. Pepper, 96 Mo.App. 596. And a judgment for taxes, to be valid as against the land, must find that the defendants named in the suit were the owners of the land. Rothenberger v. Garnett, 224 Mo. 191. (4) When land is sold for taxes and brings an amount so low as to shock the conscience, the sale, because of inadequacy of consideration alone, is void. Mangold v. Bacon, 237 Mo. 496.
Lew R. Thomason and S. L. Clark for respondent.
(1) An examination of the cases cited by appellants will disclose that they have no application or bearing whatever upon the question of sufficiency of the affidavit made by the plaintiff Lacks, herein above set forth. The question decided in the case of Chilton v. Tam, 235 Mo. 498, and the only case which approaches even remotely the question in the case at bar, is readily distinguished. While the language in the affidavit is not grammatically correct, it meets all the requirements of the statute. (2) The judgment rendered in the tax case is not void. It is the sentence or determination of the law, pronounced by a court of competent jurisdiction, in favor of the plaintiff, and against Henry S. Carroll and W. H. H. Kinzer; it finds Henry S. Carroll and W. H. H. Kinzer to be the owners of the lands described in plaintiff's petition and described in the judgment; it finds that certain state and county taxes are due and delinquent upon the lands therein described; it finds the year for which said taxes are delinquent, and the total amount of the taxes due for that year for which judgment is rendered, and contains all the essentials of a valid judgment. There is no magic in any particular form of a judgment. The omission or failure of the clerk to fill in certain blanks only constituting a proper or approved term, is but the misprision of the clerk and does not render the judgment void. Morrison v. Turnbaugh, 192 Mo. 445; R.S. 1909, sec. 1851. (3) The judgment of a court of competent jurisdiction so long as it stands unreversed cannot be impeached in a collateral proceeding on account of mere errors or irregularities not jurisdictional. The failure to fill in the blanks that were not filled could have been corrected by nunc pro tunc entry from the data furnished by and from the record itself; and equity looks upon that as done that ought to have been done.
Plaintiff brought suit under our statute to quiet title to one hundred and twenty acres of land in Butler county. The petition is described in the abstract as the usual short form petition in cases of this kind. The instant suit was brought against Henry S. Carroll et al., but before the trial it developed that said Henry S. Carroll had died in 1906, prior to the bringing of the suit, and had left as his sole heirs Harry C. Carroll and Irwin D. Carroll, who were admitted as parties defendant, and filed answer claiming title to the land.
It stands admitted that the defendants, as heirs of Henry S. Carroll, have title to the land, unless their father was divested of title by a certain tax proceeding. In other words, it is admitted that Henry S. Carroll is the common source of title.
Plaintiff claims by mesne conveyances through Henry S. Carroll, the first of which is a tax deed by virtue of a sale under a judgment in State ex rel. Lacks, Collector, v. Henry S. Carroll and W. H. H. Kinzer. It is admitted that Kinzer had no title at any time. Defendants charge that the tax proceedings were void and claim as the sole heirs of the said Henry S. Carroll, deceased. They also urge in the brief that the land sold for a grossly inadequate price, i. e., the sum of ten cents for one hundred and twenty acres of land.
Upon trial before the court judgment was entered for plaintiff and defendants have appealed.
I. It is suggested in the brief that the land was sold at a grossly inadequate price, and we are cited to the case of Mangold v. Bacon, 237 Mo. 496. The opinion in the Mangold case cannot avail these defendants. In the first place this is not an action to set aside the tax deed, and the conscience of the court is in no way appealed to in that regard. Secondly, the matter was not even pleaded below. Thirdly, the case was tried upon no such theory below. Inadequacy of price at the sheriff's sale is not in this case in any shape, and to give it consideration would be to allow a collateral attack upon the judgment. It might have been a ground of relief (a matter we do not decide) on a proper petition in a proper case, but it is not such in this case upon the record before us.
II. It is next contended by the defendants that the judgment in the tax case is void, because the clerk was unauthorized to issue an order of publication upon the affidavit which was filed with the petition in the tax suit. There was no allegation in the petition that Henry S. Carroll or the said Kinzer were nonresidents of Missouri, but to the petition was annexed the following affidavit:
The above is as taken from the appellant's abstract. The respondent thus sets out the material portion of the affidavit:
John N. Lacks makes oath and says that the defendant -- Henry S. Carroll, and W. H. H. Kinzer, non resident of the State of Missouri, and cannot be personally served with summons in this State.
It will be observed that the only difference consists in the blanks which appear in the latter, and which do not appear in the former.
It is evident that this affidavit was one of the usual forms attached to a blank petition used for tax suits, and the party failed to write in the word "are" before the words "Henry S. Carroll, and W. H. H. Kinzer" and further failed to add the letter "s" after the words "nonresident." With this word "are" and the letter "s" interpolated at the proper place, there could be no question about this affidavit. Do these apparent omissions destroy the vitality of this affidavit? We think not. The omissions are so apparent, that the ordinary reader would immediately supply them in his mind. In addition it is stated in clear terms that Carroll and Kinzer "can not be personally served with summons in this State," and all this is duly sworn to before a proper officer.
We concede the general rule that in acquiring jurisdiction by substituted service of this kind the statute...
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