Warren v. Manwaring

• Court: Missouri Supreme Court
• Writing for the Court: Fox
• Citation: Warren v. Manwaring, 173 Mo. 21, 73 S.W. 447 (Mo. 1903)
• Decision Date: 17 March 1903
• Parties: WARREN et al. v. MANWARING.

73 S.W. 447

173 Mo. 21

WARREN et al. v. MANWARING.

Supreme Court of Missouri, Division No. 2.

March 17, 1903.

TAXATION—JUDGMENT—COLLATERAL ATTACK —EVIDENCE—ORDER OF PUBLICATION—AFFIDAVIT—JUDGMENT—VALIDITY.

1. A tax judgment cannot be collaterally attacked by showing that the assessment was erroneous.

2. Failure to enter a tax judgment in the precise method pointed out by the statute is an irregularity, not available on collateral attack.

3. Sess. Acts. 1877, p. 386, § 6, relative to tax proceedings, provides that in suits against nonresidents the proceedings shall be the same as in actions affecting real property, and the statute relative to such subject (Rev. St. 1899, § 575) enacts that, if plaintiff allege in his petition "or at any time thereafter by affidavit," that the defendant is a nonresident, an order of publication shall be made, etc. Held that, where a petition in a tax suit alleged that defendant was a nonresident, and the order for publication recited the making of an affidavit, the order was valid, though no affidavit was in fact made.

4. The fact that the affidavit was not in fact made was at most an irregularity not available in a collateral attack on the tax judgment.

5. Laws 1877, p. 387, § 10, relative to taxation, provides that all suits shall be tried at the return term of the writ. In a tax suit a judgment was rendered at the return term of the writ, and thereafter, at another term, a judgment similar in all respects was rendered in the same proceeding, except that it recited the entering of "an interlocutory judgment" at the return term. Execution was issued on the last judgment, and a sale and tax deed followed. Held that, the first judgment having been a final one, and the second one wholly unauthorized, the tax deed was invalid.

Appeal from Circuit Court, Ozark County; W. N. Evans, Judge.

Suit by Louis R. Warren and another against Joshua Manwaring. From a decree for defendant, complainants appeal. Reversed.

This suit was instituted in Ozark county, Mo., on the 20th day of December, 1897. The nature of the action was to have the court ascertain and declare the title to the lands in dispute. That we may fully understand the issues in this cause, we have inserted the petition and answer.

Petition, omitting caption: "Plaintiffs state that they are the owners in fee simple of the following described real estate, situate in Ozark county, Missouri, to wit, all of section fourteen (14) and the northeast quarter and the east half of northwest quarter of section twenty-four (24), township twenty-four (24) north, of range thirteen (13) west; that defendant claims title to said above-described real estate through a tax deed executed by M. P. Tate, sheriff of Ozark county, Missouri, on the 19th day of October, 1882; that said deed was executed by M. P. Tate, sheriff, aforesaid, by virtue of a sale made under an execution issued from the circuit clerk's office of Ozark county, Missouri, on a transcript judgment from a justice of the peace and a judgment of the circuit court; that said judgments were wholly void, and passed no title. Wherefore the plaintiffs pray the court to ascertain and determine the estate, title, and interest of plaintiffs and defendant, respectively, in said real estate above described, and to define and adjudge by its judgment or decree the title, estate, and interest of the parties severally in and to such real estate."

Answer, omitting caption: "Defendant, for answer, says that he denies each and every allegation therein contained, and not herein admitted. Defendant says he is the absolute owner in fee of all the land described in plaintiffs' petition, and prays judgment for the same."

When the, cause was called for trial, respondent, by his attorney, admitted that respondent had no right or title to the N. E. ¼ and E. ½ of the N. W. ¼ of section 14, and the N. E. ¼ and E. ½ of the N. W. ¼ of section 24, township 24, range 13, same being part of said lands, and that appellants were entitled to judgment for the recovery of the same.

During the progress of the trial, the following agreement as to this cause was made: "It is agreed by and between the attorneys for plaintiffs and defendant that the common source of title is John Whitcomb, by deed to him dated August 20, 1870, by James Watson, patentee, to the S. ½ and the W. ½ of the N. W. ¼ of section 14, township 24, range 13, and that appellants are entitled to recovery, unless respondent has title by reason of sheriff's deed." Appellants introduced in evidence their claim of title from Whitcomb to the plaintiffs in this action. Defendant offered in evidence sheriff's deed, based on a judgment rendered by the circuit court of Ozark county on the 28th of October, 1878, conveying the land in dispute to one J. S. Plattenburg; also deed from Plattenburg to the defendant in this suit. Plaintiffs then offered in evidence the petition in a suit for back taxes, filed in the circuit court of Ozark county to the April term, 1878, wherein the state of Missouri, at the relation and to the use of R. Q. Gilliland, was plaintiff, and John Whitcomb defendant, to enforce the state's lien for taxes on the lands involved in this controversy. Order of publication issued upon the filing of said petition to recover the back taxes, and plaintiffs offered in evidence such publication, which is as follows:

           "Order of Publication
                 "The State of Missouri, at the Relation and
                  to the Use of R. Q. Gilliland, Collector
                   of Ozark County, vs. John Whitcomb
                

"Now comes the plaintiff herein before the undersigned clerk of the circuit court of Ozark county, in vacation, and files his petition and affidavit, stating, among other things, that the defendant is a non-resident of this state, whereupon it is ordered by the clerk that said defendant be notified by publication that plaintiff has commenced a suit against him in this court, the object and nature of which is to enforce the lien of the state of Missouri, for back taxes for the years 1865, '66, '67, '68, '69, '70, '71, '72, '73, '74, '75 and '76, amounting to the sum of $248.02, on the following described real estate, situated in the county of Ozark, to wit, section 14, township 24, range 13, and that unless the said defendant be and appear at the next term of this court, to be held on the third Monday in April next, at the courthouse in the town of Gainesville, county of Ozark, state of Missouri, and on or before the third day thereof plead, answer or demur to the petition in said cause, the same will be taken as confessed and judgment rendered accordingly.

"And it is further ordered that a copy hereof be published, according to law, in the Ozark County News, a newspaper published in the county and state aforesaid.

   "Attest:      John W. Harlin, Clerk."
                   (Record, pages 35 and 36)
                           "Proof of Publication
                           "Gainesville, Mo., April 18, 1878
                

"I, W. A. Love, editor of the Ozark County News, a newspaper published in the county of Ozark, state of Missouri, certify that the order of publication, a copy of which is hereto annexed, was published in the Ozark County News for four successive weeks, the first insertion being on the 19th day of February, 1878, in numbers as follows: 19, 20,

21, 22.                W. A. Love.
                

"Subscribed and sworn to before me this 18th day of April, 1878.

  "[Seal.] John W. Harlin, Circuit Clerk.
                  "Filed April 18, 1878.
                                 "John W. Harlin, Clerk."
                

Appellants introduced in evidence judgment of circuit court rendered on the fifth day of April term of court for the year 1878, the same being April 19, 1878, which is as follows:

"State of Missouri, at the Relation and to
                     the Use of R. Q. Gilliland, Collector
                              Plaintiff, vs. John
                           Whitcomb, Defendant.
                          "Suit on Delinquent Lands.
                

"Now at this day, this cause being called for trial, the plaintiff appears by attorneys, but the defendant comes not, but makes default, and it appearing that this suit was brought to the court by the above-named collector in and for Ozark county, Missouri, for the purpose of enforcing the lien of the state of Missouri, under the act of the General Assembly approved April 12, 1877 [Laws 1877, p. 384], upon the following described real estate, to wit, section 14, township 24, range 13 west, for the taxes, interest, and costs due thereon for the years 1865, '66, '67, '68, '69, '70, '71, '72, '73, '74, '75, and '76, and for a decree of this court to sell said real estate, or so much thereof as shall be sufficient to pay and satisfy said taxes, interests, and costs, the sum of two hundred and eighty-seven dollars and eleven cents ($287.11), which said sum is ascertained by a tax bill filed here in court by said collector, and by him duly certified as the law directs, and the court finds that said interest, taxes, and cost had been duly assessed and charged against said real estate at the several times aforesaid by the proper officers, agents of said state of Missouri, under the then existing laws of said state, and that the defendant had wholly failed and neglected to pay the same or any part thereof, although often requested to do so by plaintiff's agents, and that defendant had been notified of the commencement of this action by publication in the Ozark County News, a weekly newspaper printed and published in Ozark county, Missouri, for four weeks successively, the last insertion being at least four weeks before the commencement of this term of this court, and that the aforesaid sum of taxes, interest, and costs is still due and unpaid: It is therefore considered and decreed by the court that the lien of the state of Missouri be enforced upon the above-described real estate, and that the same, or so much thereof as shall be sufficient to pay and satisfy said takes, interest, and costs, be sold according to law for that purpose, and that plaintiff have and recover of and from the defendant her...