198 Mo. 646 | Mo. | 1906
The plaintiff began this action in the circuit court of Scotland county to set aside a sheriff’s deed. The petition was filed October 18, 1902.
The petition, in short, alleges that plaintiff by reason of being an heir at law of H. G. Pitkin, deceased, is entitled to an undivided one-eighth of all the property of which said H. G. Pitkin died seized. The petition sets forth a description of the real estate, all lying in Scotland county, Missouri. It is then alleged that the defendants, except Flagg, Roberts and Collins, are the other heirs at law of the said H. G. Pitkin, deceased. It is then averred that the defendants connived and conspired to cheat or defraud the plaintiff out of his interest in the said lands as an heir of the said IT. G. Pitkin, deceased, and had his interest in said real estate levied upon by virtue of a pretended execution without any notice to plaintiff, he being the head of the family, of his rights, and without allowing any exemptions from said executions, and that his interest in said lands was advertised for sale, and at said sale defendant W. J. Roberts bid in said lands and received a sheriff’s deed therefor; that said-deed was void and said sale was made by fraud between the defendants. It is then charged that afterwards, the said "W. J. Roberts brought a partition suit to divide said lands and plaintiff and his wife were not made parties thereto. It is then alleged that O. Jerome Flagg purchased a portion of said lands with full
The sheriff of Scotland county made return of the writ by showing service on Rachel A. Pitkin, the mother of plaintiff and widow of H. Gr. Pitkin, Jesse L. San-bum and Henry Collins, and made a non est as to the rest of the defendants. At that date the circuit court of Scotland county had two regular terms each year, beginning on the first Monday of February and August. At the February term after the service of this writ the defendants Collins and Sanbum filed their answers to the plaintiff’s petition, and at the same term the defendant Rachel A. Pitkin moved the court to require plaintiff to give security for costs and thereupon the plaintiff filed a cost bond, which was approved by the court. At the said February term, at the request of defendant Rachel A. Pitkin, the court advised the plaintiff that unless the defendants were served with process or publication before the next term- of court, the cause would be dismissed for failure to prosecute unless cause should be shown why such service was not had. The cause was then continued to the August term. At the February term plaintiff asked for no orders of publication nor for any writs to Adair and Buchanan counties. At the next term, Mrs. Rachel A. Pitkin, one of the defendants, filed her motion to dismiss the cause on the ground that the plaintiff began his suit October 18, 1902, and filed his Us pendens involving the title to large tracts of real estate owned by the defendants, many of whom are non-residents
I. Plaintiff now insists that the action of the court in dismissing his cause for failure to prosecute the same should be reversed. His first proposition is that it was the duty of the trial court, under section 577, Revised Statutes 1899, to have made an order of publication as to the non-resident defendants upon the
II. He now makes the point also that the trial court should have at least given him judgment against the two defendants who were served, his mother, and another, because they had not filed any answer. Section 583, Revised Statutes 1899, does provide that when there are several defendants, some of whom do not appear, and they are neither notified nor summoned, the
III. ’Again, plaintiff invokes the decisions of this court that orders of publication may be granted without an affidavit as to non-residents if the court is satisfied that the defendants are non-residents. Granting all this the plaintiff made no effort to obtain an order of publication. He did not attempt to satisfy the court without an affidavit that the defendants were nonresidents. Not only did the plaintiff show no diligence whatever or good faith to bring in the non-resident defendants when he began his suit, and had four months in which to obtain service before the February term, he was evincing no purpose to prosecute this action with any diligence, and the defendant his mother went out of her way to have the court admonish him that he was showing no diligence in the prosecution of his action, and the court then and there at the February
It is not pretended that any officer of the court failed to do his duty when requested by the plaintiff. It is the policy of the law to grant litigants a speedy trial, and. if ever there was a case when it seems to us that the trial court was justified in dismissing an action because the plaintiff has shown no dilig-ence in his prosecution, it is this one.
We think the trial court was abundantly justified in dismissing- the case under the circumstances, and its judgment is affirmed.