Wright v. Hink

• Decision Date: 31 January 1906
• Parties: WRIGHT v. HINK et al.
• Court: Missouri Supreme Court

91 S.W. 933

193 Mo. 130

WRIGHT v. HINK et al.

Supreme Court of Missouri, Division No. 2.

January 31, 1906.

1. PROCESS — SERVICE—NONRESIDENTS — AFFIDAVITS —PETITION.

In the absence of an allegation in the petition or an affidavit that a defendant was a nonresident of the state, there was no authority to issue a summons for him beyond the limits of the state, as provided by Rev. St. 1899, §§ 575, 582; and such service was therefore a nullity.

2. INFANTS—ACTIONS—GUARDIAN AD LITEM—SERVICE.

Where no proper service, either actual or constructive, was made on certain infant defendants, the court had no jurisdiction over them, nor authority to appoint a guardian ad litem to represent them.

3. APPEAL—PARTIES—WANT OF SERVICE—DECISION.

Where two defendants who were necessary parties to a suit had never been served, the Supreme Court on appeal would not pass on the merits of the case, though requested so to do by both parties.

Appeal from Circuit Court, Cape Girardeau County; Henry C. Riley, Judge.

Suit by Ellen A. Wright against John Hink and others. From a judgment for plaintiff, defendants appeal. Reversed.

John A. Hope, for appellants. L. Caruthers, for respondent.

BURGESS, P. J.

This is an action to cancel the satisfaction, entered of record, of a deed of trust entered by the beneficiary on the deed records of Cape Girardeau county, and to vest in plaintiff and her heirs title to a certain tract of land, described in the petition, lying and being in said county. There was judgment for plaintiff, in accordance with the prayer of the petition, from which judgment defendants appeal.

The case is brought here under the provision of section 813, Rev. St. 1899, by filing in this court a copy of the judgment in lieu of a complete transcript. Appellants have also filed a printed abstract of the record, as provided by said section they might do. While the judgment recites, and the record shows, that the defendants Alexr. and Joel Nunn were minors at the time of the institution of the suit, and the court appointed a guardian ad litem for them, by whom they answered, it does not appear from the petition that they were minors, or, from the record, that Joel Nunn was ever served with process, or, from any affidavit filed, that Alexr. Nunn was a nonresident of this state, although several unsuccessful efforts were made by plaintiff to have him served with process in the state of Illinois. In the absence of an allegation in the petition, or an affidavit filed...