Van Natta v. Harroun Real Estate Co.

• Decision Date: 08 June 1909
• Citation: 221 Mo. 373,120 S.W. 738
• Parties: VAN NATTA et al. v. HARROUN REAL ESTATE CO. et al.
• Court: Missouri Supreme Court

120 S.W. 738

221 Mo. 373

VAN NATTA et al. v. HARROUN REAL ESTATE CO. et al.

Supreme Court of Missouri, Division No. 2.

June 8, 1909.

1. APPEAL AND ERROR (§ 907) — PRESUMPTIONS — RETURN OF WRIT.

In the absence of anything in the record on appeal to show when a writ was in fact returned to the clerk's office from which it was issued, it will be presumed that the sheriff did his duty and made return at the proper time.

2. PROCESS (§ 98) — ORDER OF PUBLICATION — INVALIDITY.

Rev. St. 1899, § 575 (Ann. St. 1906, p. 601), provides that on an allegation in the petition of the nonresidence of defendants, or the filing of an affidavit of their nonresidence, the court in which suit is brought, or in vacation the clerk thereof shall make an order directed to them notifying them of the commencement of the suit, etc. Section 577 (page 604) provides that when, in a case contained in section 575, summons shall be issued against any defendant, and the sheriff shall make a return of not found, the court, being first satisfied that process cannot be served, shall make an order as is required in such section. Held, that after a non est return an order of publication made by the clerk in vacation, reciting the nonresidence of a defendant, and that the clerk was satisfied and found that process could not be served on him, was unauthorized and void.

3. PROCESS (§ 98) — ORDER OF PUBLICATION — INVALIDITY.

An order of publication is void when it fails to properly style the case by naming only the defendant not personally served and omitting the resident defendant.

4. PROCESS (§ 4) — NECESSITY TO CONFER JURISDICTION.

An order of publication against a nonresident defendant being void, and there being no personal service on such defendant, the court has no jurisdiction as to him.

5. PROCESS (§ 96) — AFFIDAVIT FOR PUBLICATION — REQUISITES.

An application for publication against a nonresident defendant need not in addition to stating that he is a nonresident, state that the ordinary process of law could not be served on him in this state.

6. PARTNERSHIP (§§ 204, 212) — ACTIONS — PLEADING AND PROCESS.

If a defendant company is a corporation, it should be sued as such; but if it is a partnership firm, the names of the persons composing it should be set out, and each individual member served with process in the manner provided by Rev. St. 1899, § 570 (Ann. St. 1906, p. 597).

Appeal from Circuit Court, Douglas County; John T. Moore, Judge.

Suit by E. H. Van Natta and another against the Harroun Real Estate Company and another. From a judgment for plaintiffs, defendants appeal. Reversed.

Burkhead & Clarke, for appellants.

BURGESS, J.

This suit, instituted under section 650, Rev. St. 1899, is for the purpose of quieting title to a tract of land described as the southeast quarter of section 15, township 27, range 11, in Douglas county, Mo.

The petition is in the ordinary language, and was filed June 8, 1905. Summons was issued to the sheriff of Buchanan county, Mo., against the defendants, and was returned by said sheriff, with the following indorsement and return thereon: "Executed the within writ in the county of Buchanan and state of Missouri, on the 24th day of June, 1905, by delivering a true copy of said writ, with a petition annexed, to W. H. Harroun, president of the Harroun Real Estate Company, and after a diligent search failed to find W. A. Moses in my county." Thereafter, on the 18th day of July, 1905, plaintiffs, by their attorney, filed with the clerk of said court in vacation an affidavit, in which the affiant says "that W. A. Moses is a nonresident of the state of Missouri, and, as he is informed and believes, resides in the state of Colorado, and that the ordinary process of law cannot be served upon the said W. A. Moses."

Upon this affidavit, the clerk, in vacation, issued an order of publication which styles the case at bar as "E. H. Van Natta and Lewis M. Pratt, Plaintiffs, against W. A. Moses, Defendant." Among other things, said order of publication contained the following: "That said defendant is a nonresident of the state of Missouri, residing outside of the state of Missouri; and said clerk being, from said petition, process, and return herein, and otherwise, duly satisfied, and thereupon duly finding, that process herein cannot be served on said defendant, W. A. Moses, it is therefore ordered by said clerk that said defendant, W. A. Moses, be notified by publication that plaintiff by petition herein filed of date June 8, 1905, has commenced against said defendant an action at law, and the immediate object and general nature of which is," etc.

On the 27th day of September, 1905, the defendants filed the following motion: "Come the defendants, by their attorneys, and appearing for the purpose of this motion alone, and as friend of the court, move the court to quash the service in this case for the following reasons, to wit:

"First. W. A. Moses was at the time and long before the commencement of this suit, and still is, a resident of Kansas City, Jackson county, Missouri, and has not been served personally, and there has never been a finding of this court based on a non est return that the defendant could not be served in this state.

"Second. The order of publication is not based on an affidavit filed alleging that defendant Moses is a nonresident.

"Third. Defendant, the Harroun Real Estate Co., has not been legally served, for the reason the petition fails to allege that defendant is a corporation or a company, and the sheriff's return is upon the president of defendant, and no copy of the petition was served upon him."

To sustain said motion, the defendants introduced witness L. O. Hailey, an attorney at law, who testified that he was acquainted with W. A. Moses in a business way, and had correspondence with him during the months of May, June, and July, 1905, and that the letters of Mr. Moses were all dated at Kansas City, Jackson county, Mo. He produced one letter addressed to him, dated "Kansas City, Mo., Aug. 31, 1905," and signed by W. A. Moses.

Defendants also introduced in evidence Record Book 29, of the office of the recorder of deeds of Douglas county, showing the record of a deed from Harroun to W. A. Moses, dated April 6, 1904, and recorded October 22, 1904, which deed, it was conceded, showed that the residence of W. A. Moses, on April 6, 1904, was in Jackson county, Mo.

After hearing said...