Gilkeson v. Knight, 71 Mo. 403

Gilkeson v. Knight

71 Mo. 403 | Mo. | 1880

Norton, J.

This is a suit in ejectment to recover the possession of certain lands in Johnson county. The answer is a general denial. On the trial plaintiff obtained judgment, and defendant brings the case before us by a writ of error. Both parties claim through J. W. Brockman, as the common source of'title.

Plaintiff, in support of his claim, offers in evidence a deed from the sheriff of Johnson county, executed on the 23rd day of April, 1867, conveying the title of said Brock-man to plaintiff in the land in controversy. The deed recites that the sale was made in virtue of certain special executions which were issued on certain judgments rendered by the circuit court of Johnson county on the 21st day of April, 1866, in an attachment suit commenced in said court by A. H. Gilkeson, the present plaintiff, and Shanklin G-ilkeson, against said Brockman, on the 30th day of January, 1866, and that the writ of attachment which issued in said cause was levied on the 31st day of January, 1866. This deed was admitted in evidence against *405the objection of defendant, and the action of the court in that respect is assigned for error. It is insisted by counsel that the proceedings- in the said attachment suit, which culminated in a special judgment against the property levied upon by the writ of attachment and a sale thereof by the sheriff to plaintiff', were void, first, because the petition was not verified by the affidavit of plaintiff, and second, because the affidavit for the attachment was not made either by plaintiff or some person for him.

1. irregularity not collateralLY questionable: need.. Ás to the first ground it may be observed that the petition was signed by A. R. Conklin, “ attorney for plaintiff,” and the affidavit attached thereto was signed and sworn to by A. R. Conklin. Conceding ° that it may be true, as counsel contend, that the verification of the petition was not in strict conformity with the statute, it amounts to nothing more than an irregularity, and is not subject to collateral attack, any more than.a judgment rendered on a petition would be, which stated a cause of action but stated it defectively, and that this cannot be done has been repeatedly held.

2. affidavit for held regular, The affidavit for the attachment accompanying the petition states every fact necessary to authorize the issuanee of a writ of attachment. It states that plaintiff has a just demand against defendant, now due, and the amount which plaintiff ought to recover after the allowance of all just credits and set-off's, and that affiant has good reason to believe and does believe that defendant is a non-resident of the State. But it is contended that the affidavit being subscribed and sworn to by A. R. Conklin, does not show on its face that it was made either by plaintiff' or by Conklin for plaintiff. It is true that the affidavit does not show on its face that it was made by plaintiff, but it does show that it was made by A. R. Conklin, and that it was made by him for plaintiff', we think is sufficiently shown from the whole record, the petition showing on its face that A. R. Conklin was the attorney of plaintiff, and it would be a contradiction of the *406record to hold that in making the affidavit, he was making it for himself and not for plaintiff, as the petition shows that he was acting in the capacity of plaintiff’s attorney. When it is sought to be shown by the record of a cause that the court in which it was tried had no jurisdiction, the whole record must be looked to and considered in determining the question. Brown v. Woody, 64 Mo. 547.

3.-. The rule as laid down in the case of Eldridge v. Steamboat William Campbell, 27 Mo. 595, that in pursuing the statutory remedy against boats, when the affidavit is made by an agent it should disclose his means of knowledge of the facts sworn to, has never been held to apply to any other than proceedings of that character, and was adopted as declared by the court, because such rule governed in admiralty proceedings, and the statutory proceeding against boats and vessels was analogous to a proceeding in rem against vessels under the maritime law.

, „ oution It is also insisted that plaintiff is estopped from asserting title to the property in dispute under the deed of the sheriff, dated April 28rd, 1867, because subsequently thereto he bought the same land of Brockman, at sheriff’s sale made by virtue of an execution which was issued on a judgment in plaintiff’s favor against Brockman, obtained subsequently to the one under which the sale, as recited in the sheriff’s deed of April 28rd, 1867, was made. If defendant had purchased at this second sale or claimed through any one who had purchased, then the doctrine of estoppel would apiply, and plaintiff' would not be heard to say that the land was not Brockman’s, but was the property of plaintiff by virtue of the first sale. No such case is made by the record, and hence the doctrine of estoppel cannot be invoked. Judgment affirmed,

in which all concur.