217 Mo. 522 | Mo. | 1909
This is a suit to quiet title to four hundred and eighty acres of land situated in Stoddard county, Missouri.
In its petition tbe plaintiff asserts ownership in this land and open, notorious, hostile, continuous and adverse possession of it under a bona-fide claim of title for more than ten years prior to tbe bringing of this suit and states that during all that time it and its grantors exercised all tbe acts of ownership and dominion over said land of which it was susceptible.
Tbe defendants are tbe children and heirs at law of J ames Keener, deceased, and in their answer denied plaintiff’s title and possession in and to tbe lands described, and aver ownership’ of tbe said lands in James Keener up to tbe time of bis death in June, 1892, and 'their right to tbe said lands by reason of descent as children and heirs at law of said James Keener.
On tbe trial it was agreed that James Keener was tbe common source of title. Tbe plaintiff then offered a
*526 ‘ ‘ The State of Missouri at the relation and to the use of William C. ITarty, Collector of the Revenue of Stoddard county, State of Missouri, vs. James Keener, Defendant.
“Before Moses Harvey, a Justice of' the Peace for Stoddard county, Missouri.
“C. L. Keaton, attorney for and in behalf of the above-named plaintiff, makes oath and says, that the above-named defendant in the above-entitled cause is a non-resident and does not reside in'the State of Missouri. C. L. Keaton.
‘ ‘ Subscribed and sworn to before me this 4th day of June, 1884.
“My term of office expires January 12th, 1887.
“Emil M. Weber, Notary Public.”
This affidavit was endorsed as follows:
“State of Missouri vs. James Keener, Piled June 12th, 1884.
“C. H. Barham, Clerk.
“Piled June 4th, 1884.
“Moses Harvey, Justice of the Peace.”
Third, the proof of the publication was attested by the affidavit of the publisher of the newspaper and showed that it was published as follows: The first insertion, June 14, 1884; the second, June 21, 1884; the third, June 28, 1884, and the fourth, July 5, 1884. Defendant then introduced Thomas H. Ezell who testified he was clerk of the circuit court and the custodian of the records of the said court, and that the records of the said court which he produced in evidence showed that the said court by its order adjourned the March term, 1884, on March 20th to June 16, 1884, on which day it met again. The sheriff’s deed was in the ordinary form of a sheriff’s deed and recited that on the 17th day of December, 1884, judgment was rendered •in the circuit court of Stoddard county in favor of the
The plaintiff then offered in evidence other conveyances regular in form down to the plaintiff, and then offered in evidence also testimony tending to prove title in plaintiff by adverse possession for more than ten years prior to the bringing of this suit.
As indicating the court’s view of the law upon the facts, the court gave the following two instructions:
“1. The court declares the law to be that plaintiff has not adduced any evidence in this cause to justify a finding for plaintiff to title to the lands in controversy by adverse possession and the finding will be for the defendants.
“2. That if the court finds and believes from the evidence in the cause that on the 20th day of March, 1884, the circuit of Stoddard county, Missouri, was adjourned to sit again on the 16th day of June, 1884, and*528 said adjournment was not a final adjournment of the March term, 1884, of said court until the next regular term in course, but was merely an adjournment of said March term, 1884, until a fixed date on which said March term continued to be held until the 17th day of June, 1884, on which date said term was adjourned until court in course, and that on the 12th day of June, 1884, and pending the temporary adjournment of said March term, 1884, the clerk of said court issued an order of publication against one James Keener in a cause entitled, £ The State of Missouri, to the use of W. O. Ilarty vs. James Keener,’ then pending in said court, for the reason that said James Keener was a non-resident of the State of Missouri, and caused notice to be served upon said Keener by publication, and that said cause came on to be heard at the September term, 1884, of said circuit court of said Stoddard county, and judgment rendered upon said service upon and notice to said James Keener, and that the lands of said Keener were sold to satisfy said judgment; and a deed executed to W. P. Renner upon a prior levy and sale of said lands under said judgment, and that plaintiff in this cause claims under said deed; then and in that event said order of publication and all proceedings based thereon, including said deed, were void for want of authority in said clerk to make.or issue order of publication, or the process and notice based thereon, and the finding of the court will be for the defendants. ’ ’
To the giving of such declarations the plaintiff duly excepted.
The court refused other declarations of law asked by the plaintiff. Thereupon the court entered judgment for the defendant and by its decree dismissed the plaintiff’s bill and vested title to the lands in controversy in the defendants, and in due form and after proper steps the plaintiff appealed to this court.
The Revised Statutes of 1879, section-3494, under which the tax proceeding involved in this suit was prosecuted, provided: “That in suits .... for the enforcement of liens against either real or personal property, and in all actions at law or in equity, which have for their immediate object the enforcement or establishment of any lawful right, claim or demand to or against any real’ or personal property within the jurisdiction of the court, if the plaintiff, or other person for him, shall allege in his petition, or file an affidavit,' stating that part or all of the defendants are non-residents of the State, .... the court in which said suit is brought, or, in vacation, the clerk thereof, shall make an order directed to the non-residents or absentees, notifying them of the commencement of the suit,” etc.
In Schell v. Leland, 45 Mo. 289, it was held by this court that under the statute allowing service and notice to non-residents by orders of publication and the publication thereof, when the facts authorizing publication are neither stated in plaintiff’s petition nor in the affidavit filed at the commencement of the suit, no order was allowable in vacation, ‘Wagner, J., speaking for the court, saying: “The above section is the only one where provision is made for the court or clerk in vacation, issuing an order of publication. The order can only be made by strictly-complying with the statute; for, in all cases where constructive service is substituted for actual notice, strict compliance is required.”
Adopting this as the settled law of this State, the record presents the question clear and sharp, was there a vacation of the circuit court of Stoddard county in the interim caused by the adjournment of that court on March 20, 1884, to June 16, 1884, when it again convened, so as to authorize the clerk, of said court to make an order of publication on June 12, 1884? In Jacob’s Law Dictionary, vacation is defined as being “all the time betwéen the end of one term and the beginning of another; it begins the last day of every term as soon as the court rises.” But in Brown v. Hume, 16 Gratt. (Va.) l. c. 466, it was said: “Thus, whether we look to its own appropriate definition or seek to deduce its meaning from the use made of its correlative by the law-writers, it would seem that there is not attached to the word vacation, a Iwell-ascertained, fixed, single, unvarying, technical meaning which is to control the interpretation of a statute in which the word has been employed; but that, on the contrary, there are several well-received meanings of the word.” The opinion in that case is well reasoned and its conclusion well sustained.
In Thompson v. Benepe, 67 Iowa 79, the Supreme Court, while recognizing the common law definition, said: ‘ ‘ But whether this meaning should be given to the word in any particular instance depends upon the subject-matter, and the necessity which exists that some other meaning should be adopted.”
In Conkling v. Ridgely & Co., 112 Ill. 36, the validity of a confession of judgment before a clerk of the circuit court in vacation was challenged. The regular
Up to the Act of March 15, 1883, there was a diversity of opinion as to what adjournment or recess of a court constituted a vacation within the meaning of our statutes permitting or authorizing various acts to be done by the judge or clerk in vacation. By that act it was provided: “Whenever any act is authorized to be done by, or any power given to, a court or judge thereof in vacation, the words ‘in vacation’ shall be construed to include any adjournment of court for more than one day.” [Laws 1883, p. 112.] After-wards, this clause of the act of 1883 was amended by the Act of March 7, 1885, by adding the words “or whenever any act is authorized to be done by, or any power, given to, a clerk of any court in vacation, the words ‘in vacation’ shall be construed to include any adjournment of court for more than one day.” [Laws 1885, p. 190.]
In Hadley v. Bernero, 97 Mo. App. 314, the question arose as to whether an appeal from a judgment in an unlawful detainer case had been taken within six days after its rendition, it being the contention of the respondent that the St. Louis Circuit Court was holding its regular term and therefore that the appeal must have been taken within six days under the statute. [Sec. 3370, R. S. 1899.] No proof was offered to show that the court was not in vacation when the judgment of the justice was rendered. Speaking to the general question now under consideration, the court said: “As to the meaning of the sections of the statutes bearing on this question, we think they use the word ‘term’ to signify the entire period from the 'first day of a term as fixed by law to its final close, and the word ‘vacation’ to signify the period between the adjournment of any term and the beginning of another, not merely an interval when the court is not in session from having adjourned for more than a day but not to court in course. [Brayman v. Whitcomb, 134 Mass. 526; Bronson v. Schulten, 104 U. S. l. c. 415; State v. Derkum, 27 Mo. App. 628.] By this construction a temporary adjournment of the St. Louis Circuit Court would not have relieved the appellants of the duty to perfect their appeal from the judgment of the justice of the peace if given in term time, inside of six days after its rendition.”
That case was followed by 'the St. Louis Court of Appeals in Warner v. Donahue, 99 Mo. App. 37. In that case the circuit court of St. Louis county had adjourned its "September term from November 30th to December 30th, in order to hold court in the other counties in the circuit, and it was held that this adjournment did not terminate the September term of the St. Louis County Circuit Court so-as to exonerate
These three cases are the only ones which we have been able to find in the decisions of the courts of appeal.
In Railroad v. Evans & Howard Brick Co., 85 Mo. 307, it appears that a writ of error and an order of supersedeas were obtained from one of the judges of this court pending the adjournment of this court for more than one day. On a motion to vacate the order of supersedeas and to dismiss the writ of error, among other things it was said: “And the Laws of 1883, page 111, amending section 3126, Revised Statutes 1879, when considered in connection with other statutory provisions already noticed, fully authorizes a judge of this court, when it has adjourned for more than one day, to inspect the record in a cause and to allow a writ of error to stay execution upon the usual terms. The order in this cause made by the circuit court was a final order, from which an appeal or writ of error would lie. ’ ’
"While the St. Louis Court of Appeals in the two cases just cited adopts the common-law definition of the term “vacation,” it is to be observed that they make no citation of the decision in Brown v. Hume, 16 Gratt. 466, or Thompson v. Benepe, 67 Iowa 79, or Conkling v. Ridgely & Co., 112 Ill. 36, but their decision rests in the main upon the common-law definition of the word and Brayman v. Whitcomb, 134 Mass. 526. We have no doubt whatever of the correctness of the decision in Hadley v. Bernero, 97 Mo. App. 314, on the ground that there was no evidence in that case to show that the court was not in vacation on the day when the judgment of the justice of the peace was rendered. And the presumption was properly indulged that as the circuit court retained and decided the cause, it found the appeal was taken in vacation. [Bauer v. Cabanne, 11 Mo. App. 114.] The general
In the case of Ex parte Santee, 2 Va. Cases 363, in delivering the opinion of the judges, Dade, J., said in speaking of the definition of the word “term” in Jacob’s Law Dictionary, “It cannot be denied that in common parlance in some of the statutes, and amongst the law-writers, the word has been often indiscriminately used to express the actual session of the court, and the stated time when it should sit. This gives room for construction, and imposes the necessity of inquiring into the reason of the law, of considering the word in the context, and comparing the relative provisions of the section, so as to ascertain the sense in which the word was used by the Legislature in this particular law; and upon the result of this inquiry the decision of this question turns.” Proceeding to examine and comment on the several clauses of the section, he came to the conclusion that in each of the passages in Which the word was used it was intended to denote not the time appointed for .the holding of the court, but the actual sitting of the court.
In Brown v. Hume, supra, Judge Daniel, in the further discussion of the meaning of the word “vacation,” said: “In view of the evil sought to be cured by the Act of 1819, to-wit, the useless and unnecessary imprisonment of debtors, we can see no reason for supposing that the Legislature, in framing the law of 1819, intended to leave an interval in which a party detained for want of bail could not confess judgment either in the clerk’s office or in court. And as the language of the statute readily admits of an interpretation extending the period during which the clerk .may take confession in his office, to the commencement of the actual ■ sitting of the court, no reason is perceived why we should not adopt that interpretation.” Accordingly it was held in that case that the Code
And we have seen the Supreme Court of Illinois in Conkling v. Ridgely & Co., 112 Ill. 36, sustained a confession of a judgment in an interval between the adjournment of the circuit court from December 27th to January 29th, and held that to hold otherwise would be to adopt a legal fiction and give it effect over what was the real condition, to the denial of the enlarged remedy which was intended to be given by the statute. Said the court: “We think that under this act the term ‘vacation’ may well be given a different meaning from what it had at common law, as above given. Under the earlier organization of courts of England, ‘terms’ of the court were four periods in each year. They commenced on fixed days, and had a fixed time of termination, and they aggregated ninety-one days. The vacations- embraced all the days in the year not included in the ‘terms.’ Any such a period of recess of a court of more than a month’s duration, as we find in this case, was unknown in that system. The early laws of this State, prior to December 9, 1871, provided for dividing the State into judicial circuits, and fixed the times for the commencement of the terms of the circuit court in each county. In no case did the statutes in express terms fix the duration of the terms of such courts, though as the judges were required to hold terms in the different counties on fixed days, and had no authority to hold court in one county at a time the law required them to hold court in another, and only one term of a circuit court could be held or be open at any one time in a circuit, it followed, as a necessary construction of the statute, that upon the occurrence of the time fixed by law for the opening
In our opinion the clerk of the Stoddard Circuit Court was authorized to make an order of publication in that suit, for the reason that there was a vacation
II. This brings us to the other contention, that the affidavit itself which was filed with the clerk and which has been set out in the statement of the case was utterly insufficient to sustain the order of publication.
The objection that the affidavit was not made in this case but in.a justice’s court is wholly untenable. The affidavit was made before a notary public who was fully authorized to administer the same and stated the essential fact that James Keener the .defendant was a non-resident of the State. The fact that it was first filed before Moses Harvey, a justice of the peace, did not affect its validity. As said by defendant, the justice had no jurisdiction of the suit, as was decided by this court in State ex rel. v. Hopkins, 87 Mo. 519. Presumably discovering that the justice had no jurisdiction the plaintiff withdrew it and filed it with his petition in the tax suit and it was none the less an affidavit filed with the petition at the commencement of the suit, than if it had never been filed with the justice, and had been originally filed with the clerk of the circuit court. Every presumption will be indulged that the affidavit was withdrawn from the justice by his consent, but as he had no jurisdiction of the case he could not have prevented the dismissal of the cause and the withdrawal of the petition and affidavit.
III. As to the other insistence, that because the affidavit was made on the 4th of June, 1884, and was not filed until the 12th of June, 1884, in the circuit court, the circuit court obtained no jurisdiction, it is to be said that the statute should be given a reasonable construction. In a direct proceeding in Campbell v. McCahan, 41 Ill. 45, it was held that an affidavit made twenty' days before the filing of the bill was not a
As the sheriff’s deed was based upon a valid judgment and the plaintiff has acquired by regular mesne conveyances the title of defendants’ ancestor, James Keener, the circuit court erred in decreeing title in defendants, as his heirs at law, and accordingly the decree of the circuit court is reversed and the cause remanded with directions to enter a decree vesting the title in plaintiff.