121 Mo. 248 | Mo. | 1894
This suit was brought by plaintiff in the Louisiana court of common pleas for the-partition of a tract of land situate in Pike county, of' which he claimed to be the owner of one undivided, one-fifth, subject to a deed of trust to defendant-Tinsley, as trustee, to secure a debt of $300 to W. Hi Morrow, who was not made a party to the suit. The petition states that defendant Rule is the owner of the-remaining four-fifths. It is stated that partition in kind can not be made and a sale of the land and division of the proceeds is prayed.
Defendant Tinsley, answered, admitting the facts stated in the petition. Defendant Rule, by answer,, denied that plaintiff was the owner of the undivided one-fifth of the land, but on the contrary alleged that-his interest therein had been sold under an execution issued upon a judgment for $600 against him in favor of his wife, in a proceeding by her for maintenance, and had been purchased by D. A. Ball, to whom a. sheriff’s deed had been duly executed and delivered.
Julia Hiles, the wife of plaintiff, on her own motion, was made a party defendant, on the ground that she was a judgment creditor of the plaintiff, having, as such, a lien on his interest in the land. By answer she stated her supposed rights and asked that her interests be protected. D. A. Ball, the purchaser at sheriff’s sale, was not made a party to the suit.
Upon a trial the court found and adjudged, the-interests of the parties as stated in the petition and ordered a sale of the premises. From this judgment-defendants Rule and Julia Hiles appealed.
Upon filing this petition an order of publication was made, which was afterwards duly published. No •objection is made to the form or substance of this order. At the May term of said court, to which defendant had been required, by order, to appear, a judgment by -default for $600 was rendered against him, as alimony, .and special execution awarded for the sale of his interest in the land.
The judgment makes this recital of its finding: -“And, it appearing to the satisfaction of the court, from the evidence produced, that the said defendant is not a resident of, nor residing within, this state, and that due notice of the filing of said petition, and of "the matters and things therein contained, has ■ been given as required by law, by publication in a newspaper printed and published in said county, the same is -taken as confessed, and judgment rendered against said defendant by default.”
Thus it appears from the record that defendant was a nonresident of the state, and the only jurisdiction the court acquired of his person was by virtue of this order of publication. Plaintiff insists that the jurisdiction of the Louisiana court of common pleas
The jurisdiction of said court is defined by section 3, Acts of 1867, page 99, as follows:
“Section 3. -Said court shall be held within the city of Louisiana, and shall have power and jurisdiction within the city of Louisiana, and within the townships in the first section of this bill specified. FirstT concurrent original jurisdiction with the circuit court of Pike county in all civil cases when the defendant,, defendants, or either of them, reside within said city or either of said townships, and when the original process is served in said townships; second, like concurrent jurisdiction with the said circuit court in all civil cases when the defendant or defendants, or either of them, do not reside in the county of Pike, and the original process is served within the townships aforesaid; third, concurrent jurisdiction with said circuit, court in all actions whatever by and against boats and vessels; fourth, concurrent superintending control with the circuit court over the justices of the peace in all civil cases in said townships, and concurrent appellate jurisdiction from justices’ courts in said townships, and exclusive original jurisdiction in appeals in all cases tried before the recorder of the city of Louisiana; fifth, concurrent original jurisdiction with justices of the peace in all civil cases not exclusively cognizable before a justice of the peace; sixth, concurrent original jurisdiction with the circuit court in all civil cases where there are two or more defendants, and one or more of them reside within said townships, and defendant or defendants may be found therein; seventh, concurrent original jurisdiction with justices of the peace in all actions of forcible entry and detainer, where the*254 ■cause of action originates in said townships; eighth, in all cases where a suit is commenced in said court, .and one or more of the defendants reside in said townships and the remainder reside outside thereof. The said court may have power to cause process to be issued against all of the defendants, and the officer .authorized to serve process may serve the same in any part of Pite county.’;
By the first section four 'townships of Pike county .are named as the limits of the jurisdiction of the court.
Upon a review of the cases the rule in this state -was recently declared to he, that the “question of jurisdiction must he tried hy the whole record. When it appears from the whole record that the court had no jurisdiction, either over the person or subject-matter, ihe judgment is void, and will be so treated in a collateral proceeding.” Adams v. Cowles, 95 Mo. 507, and cases cited.
The record in this case shows, indeed it is expressly -found hy the court, that defendant was a nonresident ■of the state, and that service of process upon him was "by publication. There can, therefore, he no presump-tion that he was served with process within the limits of the territory over which the court was given jurisdiction, or that he was a resident therein.
Reading the foregoing section of the statute it is Teadily seen, that the jurisdiction of the court is -expressly, and most carefully, limited to persons served with process within a particular territory. In no case in which there is a single defendant can service be made ■outside the limits of the four townships to which the jurisdiction of the court is confined.
It is well settled law that a court, though possessing general jurisdiction, acquires no involuntary jurisdiction of the person of a defendant, unless process is .served upon him within the territorial limits of the
The Louisiana court of common pleas is a local court and possesses only limited jurisdiction which is confined to a particular territory, and over persons residing or found therein; the only exception being, in case one or more defendants reside in the territory, and the remainder outside, process may be served in any part of Pike county. Such courts must keep within •the prescribed powers of their creation. They have no jurisdiction beyond what is given them. Schell v. Leland, 45 Mo. 290.
It is insisted that the general law, section 2022, gives ample authority to acquire jurisdiction by the publication of notice. There can be no doubt that the court and its officers, can look to the code of civil procedure for the manner in which jurisdiction may be acquired and exercised, but they have no right to go beyond the law creating the court, to find the extent of the jurisdiction. The objection is not to the manner of the service, but to the jurisdictional fact that the defendant did not reside in the territory to which the jurisdiction of the court was expressly limited. Such construction of the general laws would be wholly inconsistent with the powers granted this court. R. S., sec. 6571.
If the court could. enlarge its jurisdiction under provisions of the general law in one matter, it could in •others, and there would be no limit that did not apply to the circuit court. We must, therefore, hold that •defendant, being a nonresident of the state, the court
Our statute, section 7135, provides that “every person having an interest in such premises, whether in possession or otherwise, shall be made a party to such petition.” Under this statute, and the common law practice in equity, this court has properly held that no judgment in partition should be made, when it appears that parties, who are not before the court have an existing vested interest, in the subject-matter of the suit. In such case the parties' interested should be
While Morrow, as beneficiary in the deed of trust, was a proper party, he can come in, or be brought in, at any time before final judgment, and the failure to make him a party, no objection having been made by defendant, is not ground for the reversal of the interlocutory judgment from which the appeal was taken. Harbison v. Sanford, 90 Mo. 477.
As the wife of plaintiff secured no equity in the land, or lien upon it, by virtue of the judgment against plaintiff, and as it was a matter which did not affect the rights of defendant Eule, the evidence was properly excluded. Interlocutory judgment affirmed.