Blodgett v. Schaffer
94 Mo. 652
Mo.
1888
Check Treatment
Sherwood, J.

I. As already seen, the questionthis *670record presents is, whether the circuit court acquired jurisdiction over the Union National Bank of the City of St. Louis, by the service of its process upon that •corporation in the tax suit, under the proceedings in which the defendant claims title. It sufficiently appears, from the testimony of the clerk, Morrow, that the papers in the tax case constituted the entire judgment roll; this -is apparent for several reasons: (1) They were all the papers in the cause that could be found in his office, after diligent search; and he- declares that, to the best of his knowledge and belief, they are all of the original papers in the cause. His presumed familiarity with the rolls in his office gives his testimony in this respect great weight; (2) they were all found together, and in that way it was the custom of his office to keep them; (3) that it was the custom of his office never to issue writs without an order, and never to issue an alias writ without an order of the court, and after careful searching of the records he testifies he could not find any order for an alias writ in that cause ; and it was competent for him to testify as to the custom of his office, and the manner of his discharge of its duties. Mathias v. O'Neill, ante, p. 520. It was equally competent for him, having made search of the records of his office, to testify as to what he found or did not find written upon them; the proof is as complete as if the records were present to be inspected ; this proof could be attained in two ways, either by inspection, or else by the sworn testimony of the keeper, who has carefully examined them with the view to establish the fact. Durham v. Heaton, 28 Ill. 264. (4) The roll, upon inspection, appeared to be complete; it was not fragmentary ; there was no diminution observable or token of spoliation about it; and it will not be presumed, on mere surmise or conjecture, that any of the files constituting the roll were missing; for this would be a presumption contrary to the due and orderly course of *671business, as well as a presumption of dereliction from official duty on the part of the clerk ; neither of which presumptions can be indulged.

II. The roll, then, in the tax case must, therefore, be regarded as complete, and being complete, the record recitals of service had on the defendant are not conclusive, if the service found in the roll is fatally defective; for in such case, it will be intended that the service found in the roll is the same service, and the only service referred to in the general words of the record recital, “ or finding of jurisdiction.” And if the general finding of the jurisdiction, contained in the record of the judgment, comes in conflict with the particular ■words of the judgment roll, such latter words showing the precise method of service 7iad, the recitals of the judgment roll will countervail the former recital and confine it within the limits of the special recital, and if that prove invalid, the judgment based thereon will share a similar fate. Cloud v. Inhabitants of Pierce City, 86 Mo. 357, and cas. cit.

III. In the tax case it is quite plain that the service had was not had upon the defendant, and was, therefore, altogether valueless. The party named in the writ was not a party to the action, and service was had upon Larkin alone in his individual capacity, and the attempted amendments confessed this fact, or else why were they made ?

IY. It is equally clear that the attempted amendments of the writ and return by the order of the court, without notice to the defendant, and after the present action was begun, and without the action or knowledge of the sheriff of the city of St. Louis, were wholly without warrant of law, and without precedent. By one of these pretended amendments, the return of the sheriff was falsified. Such attempts to heal errors and to cure mistakes cannot be tolerated ; if they were, no man’s title would be safe, where it depends upon a *672sheriff’s return remaining intact until amended by that officer with the permission of the court, and in accordance with the facts.

Y. It has been suggested that, in any event the-action of the plaintiff is barred by the special statute of limitations, the tax deed being valid on its face, and having been recorded for more than three years. There are several answers to this contention: In the first place, no such point was passed upon by the trial court; in the second place, this record does not show when, if ever, the tax deed was recorded; and in the third place, the tax sale occurred in 1881, when the revision of 1879 was in force, and in that revision such special statute, section 221 of the revenue act of 1872 (2 W. S., 1872, p. 1207, sec. 221), has not been preserved, and is, therefore, repealed, according to the provisions of section 3160, Revised Statutes, 1879.

The judgment is reversed and the cause remanded, with directions to the trial couyt to enter a judgment, for the plaintiff in accordance with the facts disclosed' by this record.

All concur, except Ray, J., absent.