State ex rel. and to Use of Bair v. Producers Gravel Co.

• Citation: 111 S.W.2d 521,341 Mo. 1106
• Parties: State of Missouri at the relation and to the use of Frank W. Bair, Collector of the Revenue of Jasper County, v. Producers Gravel Company, a Corporation, E. T. Perkins, Trustee, and J. H. Smith, Defendants, B. C. Aylor, Appellant
• Decision Date: 14 December 1937
• Court: United States State Supreme Court of Missouri

111 S.W.2d 521

341 Mo. 1106

State of Missouri at the relation and to the use of Frank W. Bair, Collector of the Revenue of Jasper County,

v.

Producers Gravel Company, a Corporation, E. T. Perkins, Trustee, and J. H. Smith, Defendants, B. C. Aylor, Appellant

Supreme Court of Missouri

December 14, 1937

Appeal from Jasper Circuit Court; Hon. Ray E. Watson Judge.

Affirmed.

Allen McReynolds, Geo. E. Phelps and W. E. Bailey for appellant.

(1) The statutes of this State show what shall constitute an institution of suit. The statute requires the filing of a petition and suing out of process thereon. Sec. 724, R. S 1929. (2) Where a petition is filed but the clerk directed to delay issuance of summons, suit is not commenced. Franz v. Radeacker, 264 S.W. 97; McCormick v Clopton, 130 S.W. 856, 150 Mo.App. 129; White v. Reed, 60 Mo.App. 380. (3) The authority of an agent to enter appearance of a defendant must be explicit and the record must show it, as there is no presumption in favor of ordinary agents who are not attorneys at law. 4 C. J. p. 1322, sec. 11; 14a C. J., p. 812, sec. 2921; 2 C. J. 654, sec. 301; 6 C. J. S., p. 11, sec. 2; Brinkman v. Shaffer, 23 Kan. 528; White Hall Agricultural Co. v. Concordia Parish Pol. Jury, 127 La. 1022, 54 So. 337; In re Schlemmer's Will, 238 N.Y.S. 117, 135 Misc. 296; Bradley v. Welch, 100 Mo. 267; State ex rel. v. Muench, 230 Mo. 254. (4) An attempted appearance by third person, without authority, is wholly ineffective for any purpose whatsoever. 6 C. J. S. 68, sec. 25.

A. H. Garner for respondent.

(1) That the suits complained of were filed under the existing laws, prosecuted to final judgment and execution issued as provided by Section 658, R. S. 1929, which is in part as follows ". . . nor shall any law repealing any former law, clause or provision be construed to abate, annul or in anywise affect any proceedings had or commenced under or by virtue of the law so repealed, but the same shall be as effectual and be proceeded on to final judgment and termination as if the repealing law had not passed, unless it be otherwise expressly provided." State ex rel. v. Hackman, 272 Mo. 600, 199 S.W. 99; State ex rel. v. Pub. Serv. Comm. 317 Mo. 173, 295 S.W. 86; State v. Coon, 316 Mo. 453, 296 S.W. 90; State v. Trimble, 317 Mo. 1209, 298 S.W. 833; Foster v. Mo. Comm. for Blind, 37 S.W.2d 450; Sec. 660, R. S. 1929; State ex rel. v. County, 53 Mo. 128; Sec. 662, R. S. 1929; State v. Lewis, 273 Mo. 535, 201 S.W. 80; Ex parte Wilson, 48 S.W.2d 919. (2) The Jones-Munger Act, or Senate Bill 94, Laws 1933, having gone into effect on July 24, 1933, and the filing of the petitions as in this case, was an institution of the suits that were filed a number of months prior to the effective date of the law complained of. Lumber Co. v. Wright, 114 Mo. 333; Graff v. Ry. Co., 128 Mo. 9; Franz v. Radeacker, 264 S.W. 98; State ex rel. McKittrick v. Bair, 63 S.W.2d 67. (3) Section 9952B Acts of General Assembly of 1933, specifically provide procedure as was had and no constitutional question is involved. State v. Rowan, 106 S.W.2d 865; State ex rel. McKittirick v. Bair, 63 S.W.2d 67; State ex rel. Karbe v. Bader, 78 S.W.2d 840.

Bradley C. Ferguson and Hyde, CC., concur.

OPINION

BRADLEY

The collector of Jasper County, on March 11 and 14, 1933, filed suit against the Producers Gravel Company, a corporation, and others, to enforce the lien for taxes against certain real estate. The abstract in one case only was filed, but the briefs cover both, and both cases were argued and submitted together.

Process was not issued when the suits were filed or at any other time. On February 19 and 20, 1935, one W. M. Jackson, purporting to be acting for the defendants, filed what is claimed to be a waiver of service and entry of appearance. February 21, 1935, judgment was entered in each case. January 18, 1936, special executions were issued, and the real property concerned was advertised for sale. February 17, 1936, B. C. Aylor, who claimed to own all the stock of the corporate defendant, filed motions to quash the respective executions and stay the sales. Upon filing the motions the sales were "called off by plaintiff's attorney." These motions were overruled and Aylor appealed in both cases. We refer hereinafter to Aylor, the movant in the motions, as appellant. Also, hereinafter, we refer, in some instances, to the judgment, the motions, the suits, etc., in the singular.

The motion to quash the execution and stay the sale is based upon the contention that the tax judgment is wholly void for the reason that defendant was not in court when the judgment was rendered, and if defendant was in court, the judgment is void nevertheless, because the proviso of Section 9962b, Laws 1933, page 444, of the Jones-Munger Law, is unconstitutional. It is contended (1) that said proviso delegates legislative power to collectors, contrary to Article III, and Section 1, Article IV, of the Constitution; (2) that the proviso permitting collectors to proceed at their discretion as to suits instituted, but not merged in judgment at the effective date of the act, either under the law before repeal or under the new act, was, in effect, the revival or reenactment of the old law as to procedure to enforce a lien for taxes, contrary to Section 33, Article IV, of the Constitution, providing that "no act shall be revived or reenacted by mere references to the title thereof, but the same shall be set forth at length, as if it were an original act;" (3) that such alternative procedure permitted by the proviso would permit lack of uniformity in the various counties in enforcing tax liens, contrary to Sections 3 and 4, Article X of the Constitution; (4) that the proviso is void because in violation of the equal protection clause of Section 1 of the Fourteenth Amendment, Federal Constitution; and (5) that the proviso should be held void, because contrary to the purview and intent of the whole act, and particularly, it is claimed, that the proviso is inconsistent with the first sentence in Section 9962b.

Were defendants in court? The contention that defendants were not in court when the judgment was rendered is based on two grounds, viz.: That since no process was issued by the clerk, the suits were never commenced; and that if commenced, the claimed waiver of process and entry of appearance was not sufficient to put defendants in court. The suits, as stated, were filed respectively on March 11 and 14, 1933, and no process was issued then or at any time. There is nothing in the record to show that the clerk, when the suits were filed, or at any time, was directed not to issue summons. Construing what is now Section 724, Revised Statutes 1929 (Mo. Stat. Ann., sec. 724, p. 940), relating to the commencement of suits, "it has been held that an action is begun in a court of record when the petition is filed. This, even though summons may not thereafter be issued until the action is barred." [State ex rel. Evans v. Broaddus et al., 245 Mo. 123, l. c. 137, 149 S.W. 473. See, also, State ex rel. Brown v. Wilson, 216 Mo. 215, l. c. 292, 115 S.W. 549; Merchants Savings & Loan Assn. v. Ancona Realty Co., 229 Mo.App. 714, l. c. 719, 78 S.W.2d 470.] Under the facts here, we think the tax suits were commenced when the petitions were filed.

Was the claimed entry of appearance sufficient to put defendant in court? This document is as follows:

"WAIVER

"Comes now the Producers Gravel Company, E. T. Perkins, trustee and J. H. Smith, defendants in the above styled cause, by their agent, . . . and voluntarily enters their appearance in the above entitled cause, waiving the necessity of service of summons, for and in behalf of said corporation, and voluntarily enters their appearance and asks the Court to hear and determine the issues at any time convenient to the Court.

"Producers Gravel Company

"By W. M. Jackson

Agent.

"E. T. Perkins

"By W. M. Jackson

Trustee.

"J. H. Smith

"By W. M. Jackson

Agent."

We do not think that the question of defendant being in court is an issue. The motion to quash is a collateral attack upon the validity of the judgment. [Gary Realty Co. v. Swinney, 317 Mo. 687, 297 S.W. 43.] The judgment recites that "defendants have heretofore entered their appearance and filed answer herein" (italics ours). The judgment imports absolute verity in this collateral attack upon its validity. [State ex rel. Spratley v. Maries County, 339 Mo. 577, 98 S.W.2d 623.] If answer was filed, and the judgment says it was, then the presumption is that it was properly filed. "The record of an appearance is sufficient where it shows that an answer was filed." [4 C. J., p. 1327, sec. 20. See, also, Fleming v. McCall (Mo. App.), 35 S.W.2d 60.]

It is also claimed that the corporate defendant was dissolved as a corporation before judgment was entered, but there is nothing in the record to so show.

An execution based on a void judgment is a nullity (Burr & Co. v. Mathers & Co., 51 Mo.App. 470, l. c. 476), and if the judgment is void, then the excecution should have been quashed. The Jones-Munger Law (Laws 1933, p. 425-449) had no emergency clause and went into effect July 24, 1933. Section 9962b (Laws 1933, p. 444) is as follows:

"All lots, tracts and parcels of land upon which taxes assessed or levied prior to the taking effect of this act remain due and unpaid at the date when such taxes would have become delinquent as provided in the act under which they were assessed and levied, and which taxes are not merged in judgment prior to the effective date of this act, shall be deemed to be delinquent under the provision of this act, and the same proceedings shall be had to enforce the payment of such unpaid taxes, with interest, penalty and costs, and...