Jones v. Edeman
122 S.W. 1047
Mo.
1909
Check Treatment
GANTT, P. J.

This is an action in ejectment for one hundred and sixty acres of land, the northeast quarter of section 12 in township 55 north, of Range 21 west, in Chariton county, Missouri.' Edeman, the original defendant, was the tenant of Lois and Edna Kennedy. The Kennedys were made defendants on their application. Harriett E. Rolfe is the common source of title.

Plaintiff’s title was acquired by deed from Harriett E. Rolfe and husband, of date May 4, 1905'. Defendants’ title was deraigned from W. S. Woods, who purchased under a judgment foreclosing a mortgage given by Harriet E. Rolfe and husband to Charles Jewett, bearing date January 20, 1890, to secure the husband’s note for $1,500, of which Woods was the owner at the time of the foreclosure in 1893. Previously thereto Woods had obtained a judgment against Rollin M. Rolfe, the husband, on said note, in Oteo county, Nebraska, which fact appears in the petition to foreclose the mortgage.

The decree of foreclosure was rendered at the April term, 1893, of the circuit court of Chariton county, and Woods purchased the lands at the execution sale under said judgment, on October 21, 1893. In the foreclosure proceedings the defendants were summoned or notified by publication and the judgment was by default.

The plaintiff herein asserts the invalidity of the decree of foreclosure on two grounds: first, that the affidavit on which the order of publication was based was insufficient to authorize said publication, and, second, that the effect of the Nebraska judgment was to discharge Harriet E. Rolfe, the owner of the mortgaged lands. The affidavit alleged that “Rollin M. Rolfe and Harriet E. Rolfe are non-residents of the State of Missouri and the ordinary process of law cannot be served on them.”

*316I. Plaintiff insists the affidavit was fatally defective in not stating that the ordinary process of law conld not be served on said defendants in tins State. This action seems to have been commenced soon after the promulgation of the decision of the St. Louis Court of Ajopeals in Hedrix v. Hedrix, 103 Mo. App. 40, which sustained the contention of counsel for plaintiff in this suit; but the St. Louis Court of Appeals overruled that decision, Harbert v. Durden, 116 Mo. App. 512, and the Kansas City Court of Appeals in Paddock v. Paddock, 91 S. W. 398, ruled adversely to Hedrix v. Hedrix. In the very recent decisions of this court in Keaton v. Jorndt, 220 Mo. 117; Huiskamp v. Miller, 220 Mo. 135 and Van Natta v. Real Estate Co., 221 Mo. 373, the legislation on this topic which has finally eventuated in section 575, Revised Statutes 1899, was traced by this court. The Revised Statutes of 1889' were in force at the time of the commencement and prosecution of the foreclosure suit. Section 2022 of the Revised Statutes of 1889 was in these words: “If the plaintiff or other person for him shall allege in his petition or at the time of filing the same, or at any time thereafter shall file an affidavit stating, that part or all of the defendants are non-residents of the state, or is a corporation of another state, kingdom or country, and cannot he served in this state in the manner prescribed in this chapter, or have absconded or absented themselves from their usual place of abode in this state, or that they have concealed themselves so that the ordinary process of law cannot be served upon them, the court in which said suit is brought, or in vacation the clerk thereof, shall make an order directed to the nonresidents or absentees, notifying them of the commencement of the suit, and stating briefly the object and general nature of the petition,” etc.

Omitting the words in italics we will have the statute as it existed prior to the revision of 1889. [Sec. 3494, R. S. 1879.] As pointed out in Huiskamp v. Mil*317ler, supra, prior to the revision of 1889, a foreign; corporation might he served by publication even though it had an office and was doing business in this State, and the purpose of this change was to require service by ordinary process of law in this State whenever such service was possible. Prior to this provision, a corporation of another state, kingdom or. country might be served by publication upon the mere affidavit that it was a non-resident, and if the section as revised had been intended to apply to all non-residents,. the words “or is a corporation of another state, kingdom or country” would not have been added. We think it is clear, as was ruled in Huiskamp v. Miller and Keaton v. Jorndt, supra, that the clause, “cannot be served in this state in the manner prescribed in this chapter, ’ ’ has reference alone to the corporation of another state, kingdom or country, and has no reference whatever to natural persons who were, or are, non-residents of this State. See also Tufts v. Volkening, 122 Mo. 631. The plaintiff’s contention, therefore, that the circuit court acquired no jurisdiction over Rolfe and wife by the order of publication is unsound.

II. It was perfectly competent for Mrs. Rolfe to mortgage her land to secure her husband’s debt and it is true as contended by plaintiff that when she did this she stood in the relation of a surety for her husband. But the taking of a judgment in Nebraska against her husband on this debt, which was primarily his obligation, did not have the effect of releasing Mrs. Rolfe on her mortgage. It is also plain that this defense is not open to the plaintiff at this time, because the circuit court of Chariton county had jurisdiction of the subject-matter of said suit and of the parties, and the merits of that judgment cannot be inquired into now in this collateral proceeding. Had it been a defense at all it was open to Mrs. Rolfe in the foreclosure proceedings and neither she nor the plaintiff *318can be heard to urge it now. [Gray v. Bowles, 74 Mo. 419; Holt County v. Cannon, 114 Mo. 514.] As the defendants established title to the land by a perfectly valid paper title, it is entirely unnecessary to inquire into the propriety of the giving of the 8th instruction on their right to claim title by adverse possession. The judgment of the circuit court was right and is affirmed.

Burgess and Fox, JJ., concur.