Williams v. Williams

• Decision Date: 09 July 1930
• Docket Number: No. 28995.,28995.
• Citation: 30 S.W.2d 69
• Parties: J.N. WILLIAMS v. THOMAS F. WILLIAMS, Appellant.
• Court: Missouri Supreme Court

30 S.W.2d 69

J.N. WILLIAMS v. THOMAS F. WILLIAMS, Appellant.

No. 28995.

Supreme Court of Missouri. Division One.

July 9, 1930.

Appeal from Pettis Circuit Court. — Hon. C.H. Skinker, Special Judge.

AFFIRMED.

Bohling & Bohling and H.C. Salveter for appellant.

(1) The circuit court never acquired jurisdiction of the defendant, the appellant herein, in the divorce suit, for the reason that the circuit clerk issued the order of publication in term time. The circuit clerk can only issue an order of publication in vacation. On the 30th day of December, 1924, when the clerk issued the order of publication, it was in term time of the circuit court, which adjourned on the 29th day of December, until the 31st day of December. Sec. 1196, R.S. 1919; Sec. 7058, Clause 22, R.S. 1919; Lumber Co. v. Keener, 217 Mo. 522; Laws 1883, p. 111, cl. 22; Laws 1885, p. 191, cl. 22; State v. Meagher, 124 Mo. App. 333; Coonley v. Coonley, 237 S.W. 198; State v. Derkum, 27 Mo. App. 631. (2) The adjournment of the court on the 29th of December, until nine o'clock on the 31st day of December, was not for more than one day. For the definition of "Day" see Black's Law Dictionary or any other standard dictionary. State v. Meagher, 124 Mo. App. 333; Coonley v. Coonley, 237 S.W. 198. It is well settled that where constructive service is authorized there must be a strict compliance with the statutory requirements. Kunzi v. Hickman, 243 Mo. 113; Priest v. Capitan, 236 Mo. 447; Hinkle v. Lovelacc, 204 Mo. 220; Kelly v. Murdagh, 184 Mo. 377; Russell v. Grant, 122 Mo. 179; Myers v. McRay, 114 Mo. 377; Hedrix v. Hedrix, 103 Mo. App. 40; Wells v. Wells, 213 S.W. 830; Thompson v. Pinnell, 199 S.W. 1013. (3) An order of publication is not a formal matter. Otis v. Epperson, 88 Mo. 134; Stanton v. Thompson, 234 Mo. 7.

Barnett & Hayes for respondent.

(1) The adjournment of the court from the 29th day of December, until nine o'clock in the morning of the 31st day of December, left the court in vacation on the 30th day of December. Sec. 7058, cl. 22, R.S. 1919. The fourth clause of section 7058: "The time within which an act is to be done shall be computed by excluding the first day and including the last, if the last day be Sunday it shall be excluded." The dictionaries agree that a day is the twenty-four hours during one revolution of the earth on its axis. The case of State v. Meagher, 124 Mo. App. 333, holds that a day is twenty-four hours from midnight to midnight. An adjournment of the court from one day until the day following the next day, is an adjournment for more than one day, within the meaning of this statute. State ex rel. v. Graves, 147 Mo. App. 330; Littleton v. Christy's Admr., 11 Mo. 390; Butler v. Board of Education (Mo.), 16 S.W. (2d) 44.

RAGLAND, J.

An action to determine title. We adopt appellant's statement of the case, with some slight modifications, as follows:

This is a suit by a son, the respondent, against his father, the appellant, under Section 1970, Revised Statutes 1919, to determine interest and quiet title to two lots in the city of Sedalia, Missouri, commenced on the 15th day of July, 1927, in the Circuit Court of Pettis County, Missouri. The appellant, defendant, in his answer and by way of cross-action, alleged that he was the owner of the lots, that the son had no interest therein and asked that the court quiet the title in him.

The following facts were admitted at the trial; that the respondent is the son of the appellant and Julia A. Williams, now deceased; that the appellant and Julia A. Williams were married on February 14, 1878; that on April 29, 1878, they acquired the property involved in this suit and improved the same by erecting a dwelling house thereon containing two apartments, and held the title as tenants by the entirety, and lived together as husband and wife until 1916. The husband then went to Denver, Colorado, and the wife remained in possession of the property up to the time of her death, June 7, 1927, leasing one of the apartments.

On December 29, 1924, the 38th day of the November Term, 1924, of the Pettis County Circuit Court, said court being then in session, adjourned until nine o'clock Wednesday morning, December 31, 1924. The record entry was as follows: "29th day of December, 1924, 38th day of the November Term, 1924. Ordered that court adjourn until nine o'clock Wednesday morning, December 31, 1924."

On the 30th day of December, 1924, Julia A. Williams, the wife of the appellant, filed her petition for divorce and joined a second count in her petition to divest the appellant, her husband, of all his right, title and interest in the property in question, and vest the same in herself. This petition was filed in the circuit clerk's office of Pettis County, Missouri, and the circuit clerk marked it as filed "in vacation," and issued the order of publication as circuit clerk.

The divorce suit and the suit to divest the husband of his right, title and interest in the lots came up for hearing at the May Term, 1925, of the Circuit Court of Pettis County, Missouri. The appellant, the defendant in this suit, and in the divorce suit, not appearing, judgment was rendered by default, the circuit court granted Julia A. Williams, the plaintiff, a decree of divorce and also a decree divesting the husband of all right, title and interest in the lots in question, and vested the same in the plaintiff, his wife.

Afterwards, Julia A. Williams deeded the real estate to her son, the respondent herein, reserving a life estate in the same, and died soon after, and thereupon the respondent brought the present suit as hereinbefore stated.

The title of the respondent stands or falls upon the validity of the order of publication in the case of Julia A. Williams v. Thomas F. Williams, and the only attack made on the order of publication is that...