Stanton v. Thompson
| Decision Date | 31 March 1911 |
| Citation | 136 S.W. 698,234 Mo. 7 |
| Parties | SARAH STANTON v. RICHARD W. THOMPSON, MAX Z. LEVY and WILLIAM WALTER; MAX Z. LEVY, Appellant |
| Court | Missouri Supreme Court |
Appeal from Jackson Circuit Court. -- Hon. W. B. Teasdale, Judge.
Affirmed.
Edward C. Wright and M. F. Ringolsky for appellant; Gerson B Silverman of counsel.
W. W Calvin and J. B. Hamner for respondent.
OPINION
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 Revised Statutes 1909, section 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 co-defendants 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 $ 1250 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 $ 6000 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, Michigan, and Wheeler of Massachusetts; that in 1891 Kansas City duly issued a special taxbill against the lot for $ 5.99, bearing ten 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 taxbill before one Browne, a justice of the peace of Kaw township (which includes Kansas City) in Jackson county, Missouri, 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 non-residents 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 non-residents 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 non-residents 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 taxbill 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 upon 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 afield 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 taxbills, 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 matter 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. 108, 115 S.W. 446, et seq.), and the enforcement of the lien of special taxbills for sidewalk construction is such matter.
(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. 85, 72 S.W. 663, et seq. ; Morrison v. Turnbaugh, 192 Mo. 427, 91 S.W. 152; Davis v. Montgomery, 205 Mo. 271, 103 S.W. 979, et seq.; Ohlmann v. Sawmill Co., 222 Mo. 62, 120 S.W. 1155 [136 S.W. 700] et seq., and cases cited.]
Attending to the statutes -- by section 1770, Revised Statutes 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 plaintiff or other person for him shall allege in his petition, or at the time of filing the same, or at any time thereafter shall file an affidavit stating, that part or all of the defendants are nonresidents of the State . . . or have absconded or absented themselves from their usual place of abode in this State, or that they have concealed themselves so that the ordinary process of law cannot be served upon them."
In this case there was no affidavit of non-residence filed with the justice at any time prior to the order of publication, nor was there any allegation in the petition of such non-residence. Absent a compliance with the imperative provision in that behalf in section 1770, we must go elsewhere for warrant for the order. It is nothing to the point that the agreed statement of facts shows plaintiff and Wheeler were non-residents in fact. That admission is ex post facto. It has no retroactive virtue. We have it, but the justice did not. His act must be judged in his light, not ours.
(c). Going elsewhere for statutory warrant for the order, we find section 1772, ibid, ordaining that: "When, in any of the cases contained in section 1770, summons shall be issued against any defendant, and the sheriff to whom it is directed shall make return that the defendant or defendants cannot be found, the court, being first satisfied that process cannot be served, shall make an order as is required in said section."
Recurring to section 1770, in obedience to the call in section 1772, we find that an order of publication may go on any one of several hypotheses. First, when defendants or part of them are non-residents. Second, when they have absconded or absented themselves from their usual place of abode in this State; and, third, when they have concealed themselves so that the ordinary process of law cannot be...
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