Stanton v. Thompson

• Citation: 234 Mo. 7,136 S.W. 698
• Parties: STANTON v. THOMPSON et al.
• Decision Date: 28 February 1911
• Court: United States State Supreme Court of Missouri

136 S.W. 698

234 Mo. 7

STANTON v. THOMPSON et al.

Supreme Court of Missouri, Division No. 1.

February 28, 1911.

1. JUSTICES OF THE PEACE (§ 81)—PROCESS— PUBLICATION SERVICE.

Under the express terms of Kansas City charter, service by publication, in suits before justices of the peace to enforce special tax bills, is had under the limitations applying to suits in the circuit court.

2. STATUTES (§ 243)—REMEDIAL STATUTES.

A remedy prescribed for a newly created statutory right is preclusive, and must be followed.

3. PROCESS (§ 85)—PUBLICATION SERVICE.

Service of process by newspaper publication is strictissimi juris.

4. PROCESS (§ 167)—PUBLICATION SERVICE— ESSENTIALS.

Omission of compliance with the requirement of Rev. St. 1909, § 1770, of an averment of nonresidence of defendants sought to be served by publication, is not cured, as affecting defendants rights in a subsequent collateral suit, by recital of such nonresidence in an agreed statement of facts.

5. PROCESS (§ 96)—PUBLICATION SERVICE— PREREQUISITES.

Rev. St. 1909, § 1770, permits publication service in certain cases on averment of defendants' nonresidence, etc. Section 1772 permits such service on a non est return; "the court being first satisfied that process cannot be served." Held, that a mere non est return, in the absence of such averment of nonresidence, and a finding from the return that defendants cannot be served, are insufficient to sustain service by publication.

6. MUNICIPAL CORPORATIONS (§ 566)—SPECIAL TAXES—DEEDS—VALIDITY.

A sheriff's deed based on a justice of the peace's judgment in an action on a special tax bill is void and subject to collateral attack where it was obtained on service by publication not sustained by the required showing of nonresidence of defendants.

7. EQUITY (§ 87)—LACHES.

Laches may preclude equitable relief, though statutory limitations have not run.

8. EQUITY (§ 84)—LACHES.

The defense of laches can be invoked only to aid an existing equitable right.

9. MUNICIPAL CORPORATIONS (§ 578)—TAXES —VALIDITY OF SALE—LACHES.

One is not estopped to claim land against an invalid special tax deed on the ground of laches, where he is not shown to have known of the improvement for which the tax was levied, or that defendant relied on her nonaction, or that she was remiss.

Appeal from Circuit Court, Jackson County.

Action by Sarah Stanton against Richard W. Thompson and others. Decree for plaintiff, and defendant Max Z. Levy appeals. Affirmed.

Edw. C. Wright and M. F. Ringolsky (Gerson B. Silverman, of counsel), for appellant. W. W. Calvin and J. B. Hamner, for respondent.

LAMM, J.

The petition in this case is in two counts—the first, ejectment for lot 12 in block 16 in Goodrich's addition to Kansas City; the second, under old section 650, now Rev. St. 1909, § 2535, as amended, to try and determine title.

The joint answer alleges that Levy is owner and in lawful possession of the lot, that his codefendants are his tenants, and that plaintiff has been guilty of laches barring recovery. By way of cross-bill it then alleges that Levy acquired the property in good faith, constructed improvements (a house and barn) thereon, of a given value, which improvements plaintiff "stood by and permitted," and that Levy had paid $250 taxes, general and special, and made "other improvements and paid taxes in good faith," believing he had good title and having no notice of any claim of plaintiff. Wherefore Levy, if judgment of ouster go, prays judgment against plaintiff for $1,250 as compensation "for his improvements." A reply came in denying allegations of new matter, and the cause was submitted on an agreed statement of facts, other admissions, and certain documentary proof. Therefrom it appears that defendants have possession; that one Brooks was the common source of title; that in September, 1889, he mortgaged the premises to plaintiff to secure $6,000 due in one year; that in 1891 he conveyed to one Wheeler, subject to the incumbrance; that in 1896 Wheeler conveyed to plaintiff; that plaintiff never afterwards conveyed, and now has title, unless Levy got title by a certain special tax proceeding, presently noted; that during all times plaintiff was a resident of Grand Rapids, Mich., and Wheeler of Massachusetts; that in 1891 Kansas City duly issued a special tax bill against the lot for $5.99, bearing 10 per cent. interest, for constructing a sidewalk in front, and delivered the same to the sidewalk contractor, Barnes; that Barnes built the sidewalk by virtue of a city ordinance; that on November 2, 1893, Barnes sued plaintiff and Wheeler on the tax bill before one Browne, a justice of the peace of Kaw township (which includes Kansas City), in Jackson county, Mo., to enforce a lien on the lot. The petition in that suit is not assailed, and does not concern us further than that there was no allegation therein, nor was there any affidavit filed that defendants Stanton and Wheeler were nonresidents of the state of Missouri. The justice of the peace at sundry times issued original, alias and pluries summonses, in turn, against defendants as residents, and delivered them in turn to one Heacock, constable of Kaw township. These summonses were severally returned, executed by Heacock, viz., "by making diligent search and failing to find defendants in Jackson county, Missouri." Finally, on February 18, 1894, the justice made an order of publication, based on an entry reading: "It appears to the satisfaction of the justice from the constable's return that the defendants herein are nonresidents of the state of Missouri and cannot be served by the ordinary process of the law, the court makes the following order of publication, to wit." (Here follows the order of publication, reciting that defendants are nonresidents of the state of Missouri, and cannot be summoned in this action.) That order is not criticised, except in the foregoing particulars, hence need not be reproduced. It is agreed that proof of publication was made; that there was no personal service on any of the defendants; that a judgment followed the proof of publication against the lot for the face of the special tax bill and interest, viz., $7.25; that a certified transcript thereof was duly filed in the office of the circuit clerk; that such clerk issued execution thereon in due form and it was delivered to the sheriff; that the latter made levy and advertisement and knocked the lot down to Levy as the highest and best bidder at sheriff's vendue; that a certificate of sale was issued; and that six months thereafter a sheriff's deed followed, which was duly acknowledged, delivered, and recorded. It was further admitted that monthly rents and profits are $10; that Levy paid $250 in taxes and made improvements on the lot of the value of $500; that the facts and proceedings mentioned were all the facts and proceedings relied on by Levy to divest title out of plaintiff and into him. The sheriff's deed to Levy and other deeds and exhibits were put in evidence, but their contents are a field in the light of the foregoing admissions.

The court found the issues for plaintiff as to title, right to possession, and rental value, and for defendant Levy as to the good faith of his claim of ownership and the value of his improvements ($500), and declared a lien in his favor for that sum less rents and profits ($416). It found the rental value at $10 per month until possession be restored to plaintiff; and, having so found, decreed accordingly and ordered executions in favor of plaintiff and defendant Levy to follow the separate findings. Defendant Levy on due steps taken brought the case up by appeal.

The questions are: (1) Is the tax judgment void for want of jurisdiction (and herein of collateral attack); and (2) is plaintiff guilty of laches defeating recovery?

My Brethren all agree with me that the decree was right and must be affirmed. This, because:

(a) The charter of Kansas City ordains that in suits before a justice of the peace to enforce special tax bills service by publication may be had as in suits in the circuit court. The policy of this state has been to allow cities to regulate matters of purely municipal concern by charter provision (State ex rel. v. Field, 99 Mo. 352, 12 S. W. 802; Brunn v. Kansas City, 216 Mo., loc. cit. 117, 115 S. W. 446 et seq.), and the enforcement of the lien of special tax bills for sidewalk construction is such matter (Harris v. Hunt, 97 Mo. 571, 11 S. W. 236; Carpenter v. Roth, 192 Mo. 658, 91 S. W. 540). See on a kindred matter Lynch v. Donnell, 104 Mo. 519, 15 S. W. 927.

(b) By force then of express charter terms, service by publication may be had only as in suits in the circuit court. That call points to the general statutes for the conditions under which effective newspaper service may be had. In going there we go quickened by the cardinal precepts: First, that, where a statute creates a new right and prescribes the remedy, the remedy prescribed is preclusive, and must be followed; and, second, that service of process by newspaper publication is allowed as of necessity. It is due process of law more in form than substance. However convenient, it is a harsh and highly technical substitute for service of process; therefore, is strictissimi juris, and (being of rigid right) a party invoking it is entitled to cold law—no less, no more. Parker v. Burton, 172 Mo., loc. cit. 91, 72 S. W. 663 et seq.; Morrison v. Turnbaugh, 192 Mo., loc. cit. 446, 91 S. W. 152; Davis v. Montgomery, 205 Mo., loc. cit. 283, 103 S. W. 979 et seq.; Ohlmann v. Saw Mill Co., 222 Mo., loc. cit. 67, 120 S. W. 1155, 28 L. R. A. (N. S.) 432, 133 Am. St. Rep. 506 et seq., and cases cited.

Attending to the statutes, by section 1770, Rev. St. 1909, it is ordained, among other things, that an order of publication may be made in a suit to establish a lien against real estate. "* * * If [take notice of that "if," for there is weighty matter coiled up in it] the...