Tooker v. Leake

• Decision Date: 08 December 1898
• Parties: TOOKER et al. v. LEAKE et al.
• Court: Missouri Supreme Court

48 S.W. 638

146 Mo. 419

TOOKER et al. v. LEAKE et al.

Supreme Court of Missouri, Division No. 1.

December 8, 1898.

SUMMONS — ORDER OF PUBLICATION.

Under Rev. St. 1889, § 2022, providing if plaintiff "shall allege in his petition, or at the time of filing same, or at any time thereafter shall file an affidavit stating that * * * defendants are nonresidents," so that the ordinary process of law cannot be served on them, the court, or, in vacation, the clerk, shall make an order of publication directed to the nonresidents, notifying them of the commencement of the suit; and section 2024, providing when summons shall be issued against a defendant, and the sheriff shall make return that he "cannot be found, the court, being first satisfied that process cannot be served, shall make an order" as required in section 2022, — an order of publication reciting that defendants "are nonresidents," but not reciting that they "cannot be found," or making any reference to the "non est" return of the sheriff, is void, though there was such a return, there having been no allegation in the petition or in an affidavit that they were "nonresidents."

Appeal from circuit court, Lawrence county; J. C. Lamson, Judge.

Action by C. W. Tooker and others against Lottie C. Leake and others. Judgment for defendants. Plaintiffs appeal. Reversed.

James R. Vaughan and Geo. A. McCollum, for appellants. Henry Brumback, R. H. Davis, and Joseph French, for respondents.

BRACE, P. J.

This is an action in ejectment to recover possession of the N. W. ¼ of the S. W. ¼ of section 24, township 26, range 26, in Lawrence county, Mo. The petition is in common form, and the answer a general denial. C. W. Tooker and S. H. Horine, trustee, are the common source of title. It is conceded that plaintiffs have their title, unless the same was devested by a sheriff's deed under which the defendants claim title, dated February 16, 1894, made in pursuance of a sale under execution on a judgment in an action for delinquent taxes rendered by the Lawrence county circuit court at the August term thereof, on the 13th of November, 1893, in which the said Tooker and Horine were made parties defendant in the petition.

The undisputed facts in the case seem to be: That the tax suit in the circuit court of Lawrence county, by petition filed July 5, 1892, was in the ordinary form of petitions in such suits for delinquent taxes. That no fact authorizing publication of notice, as provided in section 2022, Rev. St. 1889, was alleged in the petition or stated in any affidavit filed in the cause. That summons for Tooker and Horine, defendants therein, returnable to the August term, 1892, of said court, was issued to the sheriff of Lawrence county. That, upon return of that summons at that term, an alias summons was issued to the same county, returnable to the February term, 1893. That the alias summons was returned non est at that term, and the following entry was then made on the judge's docket, "Pub. in Pierce City Democrat 27," and the following order afterwards spread upon the record of the court: "March 10th, on the 28th Day of the February Term, 1893. The State of Missouri, ex rel. A. R. Wheat, Collector of the Revenue within and for Lawrence County, Missouri, vs. S. H. Horine, as Trustee, and C. W. Tooker. Now, at this day, it appearing to the satisfaction of the court that the above-named defendants, S. H. Horine (as trustee) and C. W. Tooker, are nonresidents of the state, so that the ordinary process of law cannot be served upon them, it is therefore considered, ordered, and adjudged by the court that the defendants be notified by publication that plaintiff has commenced suit against them in this court, the object and general nature of the petition filed in said suit being the enforcement of a lien of the state of Missouri against the southwest quarter of the northwest quarter of section twenty-four (24), township twenty-six (26), range twenty-six, for the taxes, interest, and costs for the year 1890, amounting to one dollar and fifty-five cents ($1.55); and that unless the said defendants be and appear at this court at the next regular term thereof, to be begun and holden at the court house, in the city of Mt. Vernon, on the 7th day of August, 1893, and on or before the sixth day of said term answer or plead to said cause, the same will be taken as confessed and judgment accordingly. It is further ordered that a copy hereof be published according to law in the Pierce City Democrat, a newspaper published in said county, for four weeks in succession, the last insertion to be at least four weeks before the first day of the next term of said court. A true copy. Attest: Geo. M. Cary, Clerk. James L. Sheets, Plaintiff's Attorney." That said order was duly published, and proof of publication thereof made, at the August term, 1893, of said court at which the judgment was rendered, and which contains the following recital: "But said defendants come not, but make default; and it appearing to the court, from an inspection of the record and papers in the case, that the defendants herein had been duly notified of this suit, as appears by the return of the sheriff of Lawrence county, and E. P. Moore, publisher of the Pierce City Democrat, that S. H. Horine, trustee, and C. W. Tooker, had been duly notified by advertisement published in the Pierce City Democrat, a newspaper published in Lawrence county, Missouri, for four weeks in succession, the last insertion being at least four weeks before the first day of this court." That execution issued on the judgment, returnable to the February term, 1894, at which term the land was sold, on the 10th day of February, 1894, and the defendant R. H. Davis became the purchaser thereof, and received the sheriff's deed therefor, duly executed and acknowledged the 16th, and recorded on the 21st, day of February, 1894. That after the final adjournment of that term of court, on the 9th of March, 1894, and in vacation thereof, on the 21st of March, 1894, the defendants in said suit, Tooker and Horine, filed their motion, reciting the judgment; sale to Davis; the title acquired by the other defendants herein under him; and praying that said judgment be set aside and for naught held, for the following reasons: "First, because said judgment and sale are null and void; second, because the court had no jurisdiction over said defendants, — neither of them had been served with process or in any other way notified of said suit; third, because the order of publication is void." A copy of this motion was served upon the collector, Wheat, and upon the defendants herein; and the motion coming on to be heard at the August term, 1894, of said court, the same was sustained, the judgment set aside, and from the order setting the same aside the said Wheat and the defendants herein took an appeal to the St. Louis court of appeals, by which court the judgment of the circuit court setting aside the judgment rendered by it in the tax suit was affirmed. 63 Mo. App. 1.

It was admitted on trial that the original summons in the back-tax suit and alias summons were issued to the sheriff of Lawrence county, Mo., and that no writ of summons was ever issued to Greene county, Mo.; that neither Horine nor Tooker, defendants in said back-tax suit, ever lived in Lawrence county, Mo., and that said Wheat, collector, had known Tooker four or five years before the bringing of said tax suit, and that he knew that he lived in Springfield, Greene county, Mo., and while he, said Wheat, was not personally acquainted with said Horine, he had known him, from the advertisement of his business, some four, five, or six years, and that he (Horine) lived in Springfield, and that said defendant J. W. Leake, husband of Lottie C. Leake, had known Horine for several years before buying said land; that there was no service of process of any kind upon defendants in said back-tax suit, except by order of publication in the Pierce City Democrat; that there was no affidavit of nonresidence, nor allegation in the petition to that effect, nor was there any allegation or affidavit alleging any absconding or absenteeism, which prevented the service filed in said cause; that the only notation to the issuance of a summons was upon the judge's minute docket, to wit, "Alias summons to any county." It was also admitted that the entries heretofore offered in evidence in said back-tax suit were all the entries shown by the records in said cause; that when said Davis bought the land he did so for the joint use of himself, E. P. Moore, Gus Schoen, and Joseph French, but that the deed was taken in the name of the said Davis only. It was also admitted that the 27th was not the last day of the February term, 1893, of the Lawrence county circuit court, but that the court held two days thereafter, and that there was no entry on the clerk's minute book of any order of publication in the tax suit. The plaintiffs also introduced oral evidence to prove that Tooker and Horine were both residents of Springfield, Greene county, Mo., at the time the tax proceedings were had, and that the defendant John W. Leake and the said Schoen and French were acquainted with Horine; that Tooker paid the taxes of the year before on this land, or tried to pay them, to Wheat. And defendants introduced oral evidence tending to prove that the entry on the judge's docket aforesaid was in the handwriting of the judge, and that the figures "27" mean the 27th day of the term; that defendant J. W. Leake did not, at the time he bought the land from Davis, know that either Horine or Tooker owned or claimed it; that defendant Davis did not know either Horine or Tooker until after he bought the land; that the said E. P. Moore did not know either Horine or Tooker, nor where they lived, and the said French did not know the land ever belonged to Horine, or to whom it did belong, until after the sale and after he...