184 Mo. 377 | Mo. | 1904
This is a suit under the statute to quiet title to real estate. The judgment was for the plaintiffs, decreeing that the title to the land was well vested in them in fee simple and that defendants had no interest in it, from which judgment defendant Murdagh appealed.
It is conceded by appellant that the title is in the plaintiffs and the decree is right unless the title passed by virtue of a certain deed by the sheriff made to Meng as purchaser at a sale under special execution of a judgment in rem for taxes against this land. Appellant Murdagh holds by subsequent conveyances whatever title Meng acquired under that deed.
The record in the tax suit was in evidence at the trial and showed as follows:
The petition stated that the defendants were the owner's of the land and were non-residents of the State, No summons issued, but upon the filing of the petition there was an order of publication made by the court reciting that it appearing to the court that the defendants “cannot be found in the city of St. Louis and the court being satisfied that the ordinary process of law cannot be served upon them, it is ordered by the court that the said defendants be notified,” etc., by publication. The proof of publication showed what purported to be a copy of the order of the court, but it recited that “it appearing to the court from the petition filed in this cause that the defendants (naming them) are nonresidents of the State of Missouri and that the court being satisfied that the ordinary process of law cannot be served upon them it is ordered,” etc. The defendants not. appearing, a default was entered against them and in due time a final judgment in rem was rendered condemning the land to be sold for taxes, special execution issued, under which the sheriff sold the land and Meng
This order of publication does not sustain the test. A publication addressed to residents who cannot be found by the sheriff is not a publication addressed to non-residents, and the one cannot be substituted for the other.
The authority to make an order of publication addressed to a non-resident is based on a different condition or state of case from that to make an order addressed to a resident who cannot be found. [Secs. 575, 576, 577, R. S. 1899.] These statutes are fully construed and explained in Harness v. Cravens, 126 Mo. 233; Tooker v. Leake, 146 Mo. 419; Winningham v. Trueblood, 149 Mo. 572; Cummings v. Brown, 181 Mo. 711. The court in the case in question had no authority to make the order it did make based on the alleged finding that the defendants could not be found, for such an order could only be made after summons had been issued and returned by the sheriff that he could not find the defendants; the sheriff’s return might or might not have been satisfactory evidence to .the court that the defendants could not be found, but it was necessary before the court could go into,the investigation.
It does not help the judgment in this tax suit to say that on the face of the petition the court could or should have made an order of publication against the defendants as non-residents, because we are to judge
The order of publication was not made in conformity to the statute, therefore the notice as published gave the court no jurisdiction of the defendants, and the judgment founded on it is void. But it was shown in the evidence at the trial that before this order of publication, above discussed, was entered in the record book of the court, an employee in the clerk’s office, who, however, was not a deputy clerk, in the absence of the clerk and of the deputy clerk whose duty it was to record the court’s order, wrote in the record book what on the face of the writing purported to be an order of publication, addressed to defendants as noñ-residents, based on the statement in the petition that they were non-residents.. It was á copy of this supposed order that was published in thé newspaper. But the evidence also showed that shortly after this supposed order was so written in the record book, on the same day, as soon as the deputy clerk who had official charge of the book came into the office, he looked at the entry that had been made and immediately erased it by drawing with his pen through it and afterwards on the same day wrote the order above discussed, based on the finding by the court that the defendants could not be found, and that was the final record of the matter in the case.
The employee who wrote the order that was erased had no authority to do so. He was in the habit, as the evidence showed, of writing orders in the book under the direction of the deputy clerk, and therefore any order that he might write by direction of the deputy would be the act of the deputy done by the hand of the employee, and if the employee should assume to make an entry, as he did in this instance, in the absence and
There is another question discussed in the briefs, which is of the sufficiency of the sheriff’s deed, but as the judgment under which the execution issued was invalid, it is unnecessary for us to pursue the subject further.
The judgment is affirmed.