The State ex rel. Brown v. Stewart

• Citation: 281 S.W. 768,313 Mo. 1
• Parties: THE STATE ex rel. OMER E. BROWN, Petitioner, v. FRED STEWART, Judge of Circuit Court
• Decision Date: 26 February 1926
• Court: Missouri Supreme Court

281 S.W. 768

313 Mo. 1

THE STATE ex rel. OMER E. BROWN, Petitioner, v. FRED STEWART, Judge of Circuit Court

Supreme Court of Missouri

February 26, 1926

Motion for Rehearing Denied March 20, 1926.

Writ made absolute.

Hamlin Hamlin & Hamlin, Page & Barrett, Charles Boyd and Neale & Newman for petitioner.

(1) The requirements of the statute as to notice are jurisdictional and must be strictly complied with. State ex rel. v Hough, 193 Mo. 615; Castello v. Court, 28 Mo 277; State ex rel. v. Spencer, 166 Mo. 279; 15 Cyc 394-400; Higbee v. Ellison, 92 Mo. 13; Montgomery v. Dormer, 181 Mo. 5; State ex rel. v. Robbinson, 192 S.W. 103; State ex rel. v. Southern, 214 S.W. 100. An election contest is purely statutory, and a party to avail himself of it must bring himself within the statutory requirements. Chandler v. Railroad, 251 Mo. 592; Barker v. Railroad, 91 Mo. 86; McIntosh v. Railroad, 103 Mo. 131; Matthieson v. Railroad, 219 Mo. 542; State ex rel. v. Hough, 193 Mo. 643. Under our statutes, the notice takes the place of a petition and writ, and the service of the notice fills the office of a summons. Hale v. Stimson, 198 Mo. 145. Therefore a return made before the return day in an election contest is premature and void, the same as in a civil suit. State ex rel. v. Southern, 214 S.W. 100; Lumber Co. v. McCabe, 220 Mo. 169; Ex parte Nelson, 251 Mo. 167. A non est return prematurely made does not authorize substituted or constructive service. 32 Cyc. 472, 507; Cummings v. Brown, 181 Mo. 711; Dillion v. Rash, 27 Mo. 243; Marks v. Hardy, 86 Mo. 232. The attempted substituted or constructive service was prematurely made in this case and therefore is absolutely void. State ex rel. v. Robbinson, 192 S.W. 1003; State ex rel. v. Southern, 214 S.W. 100. (2) An officer cannot amend his return without leave of court. The attempted amendment to the sheriff's return of December 29th was not made with leave of court because the court was not in session. Therefore the attempted amendment of December 29th was null and void. Bauch v. Weber Flour Co., 238 S.W. 581; Jackson v. Weber Imp. Co., 247 S.W. 469. (3) The court's attempted amendment of the sheriff's return was without warrant of law, and is therefore void. The authority of the court over the sheriff's return in material matters extends no further than to require the sheriff to make a full return, not a new or contradictory one. Flynn v. Kalamazoo, 101 N.W. 222; 21 R. C. L. 1330. The sheriff's return is conclusive as between the parties as to all matters within the knowledge of the sheriff, unless the falsity of the return is shown by some other part of the records. Goddard v. Harbox, 540 Am. St. 608. In Missouri the sheriff's return cannot be attacked by oral evidence. Stewart v. Stringer, 41 Mo. 404; Madison Co. v. Suman, 79 Mo. 531. The sheriff's return of process, regular on its face, is conclusive between the parties to a suit and its truth cannot be controverted in the suit in which it has been filed. Dellinger v. Higgins, 26 Mo. 180; 4 Cyc. 620. Where the sheriff's return is complete on its face he cannot be compelled to amend it, and the only remedy is on the sheriff's bond. 32 Cyc. 539; Dellinger v. Higgins, 26 Mo. 180; Hollowell v. Page, 24 Mo. 590. (4) Contestant's notices were insufficient to confer jurisdiction upon the court in the election contest. Hale v. Stimson, 198 Mo. 134; State ex rel. v. Southern, 214 S.W. 100. (5) The filing of a motion or answer attacking the notice, does not constitute a waiver, and does not confer jurisdiction on the court. State ex rel. v. Spencer, 164 Mo. 55, 166 Mo. 279; State ex rel. v. Robinson, 192 S.W. 1003; State ex rel. v. Southern, 244 S.W. 100.

W. L. Vandeventer and Moore & Farrar for respondent.

(1) The proper service was had on contestee by posting of the notice in the clerk's office. The fact that it was posted prematurely makes no difference if it stayed up, and an honest endeavor was made by the sheriff to locate contestee during the whole twenty days. Sec. 4896, R. S. 1919. (2) There are two ways of amending returns to conform with the facts. (a) The court may do so: Before final judgment. Sec. 1274, R. S. 1919; After judgment. Sec. 1277, R. S. 1919; At any time. Sec. 1287, R. S. 1919. (b) The court may require the sheriff to amend. Sec. 1289, R. S. 1919. (3) Oral testimony is admissible so the facts may be ascertained and the amendment made to conform thereto. Jackson v. Brown, 211 S.W. 893; Feurt v. Caster, 174 Mo. 301; Judd v. Smoot, 93 Mo.App. 289; McGrew v. Foster, 54 Mo. 258; Scruggs v. Scruggs, 46 Mo. 271; Trust Co. v. Enright, 162 Mo.App. 158; Hopkins v. Henson, 205 Mo.App. 384. (4) It is the service of the notice, either actual or constructive, which gives the court jurisdiction. The return is merely the evidence by which the court ascertains the fact of service. Kahn v. Ins. Co., 228 Mo. 585. (5) The sheriff could make no amendment without leave of court. Sec. 1289, R. S. 1919; Bauch v. Weber Flour Mills, 210 Mo.App. 666; Kahn v. Ins. Co., 228 Mo. 585; Sibole v. McKinnies, 217 S.W. 577; Hopkins v. Henson, 205 Mo.App. 384. (6) The law gives the court jurisdiction of the subject-matter of an election contest. State v. Cave, 272 Mo. 653; Hope v. Blair, 105 Mo. 85; State ex rel. v. Spencer, 164 Mo. 48. (7) The service of notice gives jurisdiction of the person and this may be waived. State v. Cave, 272 Mo. 653; Fithian v. Monks, 43 Mo. 515; State ex rel. v. Smith, 104 Mo. 422; State ex rel. v. Neville, 110 Mo. 348; State ex rel. v. Oliver, 163 Mo. 697; State ex rel. v. Spencer, 164 Mo. 48; State ex rel. v. McElhinney, 199 Mo. 67. (8) A demurrer to a petition is an entry of appearance and waiver of service. Calling it a "motion to quash" and a "motion to dismiss" does not change its character. These motions challenge the sufficiency of the petition, which is the province of a demurrer. Hill v. Barton, 194 Mo.App. 324; Newcomb v. Railroad, 182 Mo. 687; Davis v. Fleming, 253 S.W. 798; State v. Grimm, 239 Mo. 135.

OPINION

White, J.

The relator seeks by prohibition to restrain the respondent, Judge of the Circuit Court of Christian County, from proceeding further with an election contest wherein the relator is contestee, and G. Purd Hayes, is contestant.

Brown and Hayes were opposing candidates for prosecuting attorney of Christian County at the election held November 4, 1924. The canvass of the vote showed that relator received 2109 votes, and contestant Hayes received 2096 votes. The canvassing board announced that relator was elected by a majority of thirteen votes.

The relator filed his petition here February 2, 1925, averring the facts in relation to the election and the count of the votes, and alleging that November 21, 1924, Hayes placed in the hands of the Sheriff of Christian County a copy of an alleged notice of intention to contest the election, on the same day posted in the office of the Clerk of the Circuit Court of Christian County a copy of said notice, and made return that, being unable after diligent search to find the contestee, Omer Brown, or any member of his family over the age of fifteen years, at his usual place of abode in Christian County, he so posted the notice; that later the sheriff filed an additional return certifying that on November 27th he received a paper which purported to be a copy of the notice and petition in the case of Hayes v. Brown; that he visited the residence of Brown and failed to find Brown, or any member of his family over the age of fifteen years, and November 28th visited the residence of Brown twice and failed to find any member of his family; that he had no papers in his possession from the time the first notice was posted until November 27th.

The petition then alleges that at the January term, 1925, of the Circuit Court of Christian County, the relator filed a motion to quash the alleged service upon him of the said notice, and on the same date filed a motion to dismiss the proceeding, both of which motions were by the judge of said court, the respondent, overruled; that the said court was entirely without jurisdiction, but the respondent assumed jurisdiction of the election contest and announced that he would proceed to hear and determine the same. The petition prays this court to issue a writ of prohibition, as stated.

A preliminary rule in prohibition was issued by this court February 17, 1925. The respondent thereafter filed an acceptance of service and filed a motion praying this court to permit respondent to require the sheriff to amend his return to conform to the facts. This motion was by this court sustained, and thereafter the respondent, on March 7, 1925, filed herein his return to the provisional writ, which among other things, recites that respondent ordered a recount of the votes involved in said contest, and on such recount found contestant elected by a majority of twenty-five, and while the contestee was served with notice upon the contestee, and upon such evidence ordered representation. To this return the petitioner filed a reply, joining issue on certain facts alleged therein. Thereafter, September 10, 1925, a stipulation was entered into between the relator and respondent setting up the facts in relation to a second amended return of the sheriff in the contest case. This shows that the respondent took evidence regarding the service or attempted service of the notice upon the contestee, and upon such evidence ordered the sheriff to make a second additional return, which the sheriff refused to sign.

It is claimed by the relator that no jurisdiction of the cause was acquired by respondent because the contestee was never legally served with notice of the contest. In this matter we have for consideration:

The first return of the sheriff made ...