165 Mo. 16 | Mo. | 1901
This is an appeal by the plaintiff from a judgment of the Montgomery Circuit Court, rendered on the twenty-seventh of December, 1897, dismissing his bill, and for costs in favor of the defendants. The suit was instituted in said court at Danville on the ninth of October, 1889, against Hugh B. Gibson, Mary D. Gibson, George Palmer and Alexander Mudd as defendants, and on stipulation transferred to said court at Montgomery City. Pending the suit, the said defendants, Hugh B. Gibson and Mary B. Gibson, died, and their death having been suggested, and the defendant Eobert N. Gibson, Thomas N. Gibson and Elizabeth J. Hunter, the only children and heirs at law of the said Hugh B. and Mary Gibson, having been made parties defendants in their stead, the plaintiff on the twenty-seventh of May, 1895, filed the amended petition on which the case was tried, charging in substance that the said Hugh B. Gibson and Mary B. Gibson were married about fifty years ago in Ohio county in the State of Indiana, where they resided until the year 1877, or 1878, when they moved to the State of Missouri. That Hugh B. Gibson bought of one H. E. Dodd 43.3 acres of land situate in said county of Ohio and State of Indiana and received a deed therefor dated September 6, 1855. That in the year 1875 the said Hugh B. Gibson was largely indebted and insolvent and ever since has been insolvent. That among others he was indebted to one Hester Ann Barker on a promissory note long past due. That on the thirtieth of October, 1876, for the purpose of hindering, delaying and defrauding his creditors, the
To the amended petition the defendants Palmer and Mudd filed no answer. The other defendants, Eobert N. Gibson, Thomas N. Gibson and Elizabeth J. Hunter, on January 4,
To .this answer the plaintiff filed a reply, alleging in substance that the judgment under which he claims is a valid judgment. That Hugh B. Gibson claimed to own the property sold thereunder and bought by the plaintiffs. That he-claimed homestead and exemptions under the statute, and caused his exemption therein to be set out by the sheriff; that plaintiff bought the land at the request of the said Hugh B. Gibson and for his benefit under an agreement that he should have one year to redeem the same upon the payment of all the costs in three suits then pending against said Hugh B. Gibson and seventy-five per cent of the debts, and in pursuance of said agreement afterwards he tendered a deed to said land to Hugh B. Gihson, and requested him to redeem the land as agreed,
The stipulation pleaded in the reply was filed on the twenty-seventh of October, 1892, and is as follows:
“In the Montgomery Circuit Court, October term, 1892. “Emil Rosenberger,
vs.
H. B. Gibson et al.
“It is stipulated by and between the plaintiff and the defendants in the above entitled cause, that this cause be transferred to the circuit court of Montgomery county, held at Montgomery City, and that all the papers in this cause be transferred to said court without copying the same.
“It is further stipulated that it is admitted on the trial of said cause that a judgment was rendered in the Montgomery Circuit Court on the second day of May, 1881, in favor of Hester Ann Barker against Hugh B. Gibson for $221.15 based on a judgment against Hugh B. Gibson in favor of the same plaintiff in Ohio county in the State of Indiana, before .a justice of the peace for said county of Ohio, in a debt due prior to October 30, 1876. It is also stipulated that it is admitted on the trial of this cause that the legaHitle to the real estate in controversy was at the time of the rendition of said judgment and at the time the plaintiff bought the right, title and interest of Hugh B. Gibson in said real estate, in the defendant Mary B. Gibson. “J. D. Barnett, Attorney for Defendants.
“Emil Rosenberger, Plaintiff.
“Filed October 27, 1892.”
“Executed the within by leaving a true copy of the within writ and petition as furnished by the clerk with a member of Hugh B. Gibson’s family over, the age of fifteen years in Montgomery county, Missouri, on the sixth day of April, 1881.”
To the action of the court in sustaining defendant’s motion to withdraw the stipulation and admitting said record in evidence, the .plaintiff excepted, and assigns the same as error. The basis of plaintiff’s action is the judgment by default against Hugh B. Gibson of May 2, 1881. Unless that judgment is valid, or unless the defendants are estopped from showing that it is invalid, the plaintiff has no standing in court and his action must fail.
Under the statute, a writ of summons may be served upon the defendant “by leaving a copy of the petition'and writ at his usual place of abode, with some person of his family over the age of fifteen years.” [R. S. 1899, sec. 570; R. S. 1879, sec. 3489.] This is constructive service, and the terms of the statute must be substantially complied with. The service in this case is on all fours with the service in the case of Laney v. Garbee, 105 Mo. 355, the defect in the return in each being precisely the same, a failure to show that a copy of the petition and writ was left “at the usual place of abode” of the defendant. That case is decisive on this question, and is in harmony with a long line of decisions. [Blanton v.
The court might well have dismissed the plaintiff’s bill as soon as the invalidity of the judgment was disclosed, and he would have had no just cause of complaint. And he can have no ground for complaint that the same result was reached by the trial court, on the merits, after a long and patient hearing. The judgment of the circuit court is affirmed.