Rumfelt v. O'Brien

57 Mo. 569 | Mo. | 1874

Lewis, Judge,

delivered the opinion of the court.

Petition in ejectment was filed August 14, 1872, for a lot in the town of Benton. The answer was a general denial in the usual form.

Trial was had before the court sitting as a jury. The plaintiff introduced a deed of the premises to himself and John A. Hinton, from James Parrott and wife, dated July 2, 1860, and proved the grantee’s possession in. 1861. For the purpose, it is presumed, of fixjng in advance the character of defendant’s claim, he introduced detached parts of the record of a suit instituted August 10th, 1863, in the Scott Circuit Court, in which the Union Bank of Missouri was plaintiff and Hinton and Rumfelt, with others, were defendants. These included, in the following order, the judgment, petition, summons and return, several orders of publication with their proofs, and copies of the bill of exchange and protest upon which the suit was founded. Here the plaintiff rested, having exhibited nothing, so far as can be discovered, to connect the defendant’s possession rvith these proceedings. The defendant then introduced a sheriffs deed to William 0. Hayden, under the Union Bank judgment, conveying the lot in controversy as the property of Hinton and Rumfelt, and bearing date April 12, 1867. It was admitted that defendant claimed title and possession by conveyance from the sheriffs grantee. The court’s finding and judgment were for the defendant.

Whatever doubts might have arisen at the close of the plaintiffs testimony as to the sufficiency of his prima facie case, the defendant furnished a solution of them in his introduction of the sheriffs deed. He thus admitted that the plaintiff had the title of the property at the date of the execution sale. (Brown vs. Brown, 45 Mo., 412.) From that moment the controversy was to be determined by the competency of the sheriff’s deed to divest the plaintiff’s title.

The plaintiff insists that the judgment under which the sheriff sold was void as to Rumfelt, for want of notice. The return on the summons introduced by plaintiff exhibited personal service on the defendants, Hinton and Levi S. Green, adding, “the other said defendants not found in my county.” The petition stated-that Rumfelt and two other defendants, Allen and Parrott, were non-residents, and this was sworn to by plaintiff’s attorney. Orders of publication, each of which is claimed to have been tainted with irregularity, were made and the publications proved against these three. The judgment rendered April 8th, 1S65, recited as follows: “The plaintiff, by her attorney, comes and dismisses this suit as to defendant, Thomas J. Allen, and the court being satisfied that the order of publication made at the last term of this court, notifying defendant, James Parrott, of the pendency of this suit, has been made agreeably to law, and the other defendants being duly served with process and having been solemnly called, etc.”

We do not perceive how it can be said, consistently with the great array of authorities bearing upon this subject, that the judgment was void as to Rumfelt. It will be observed that nothing is here to show that the several fragments exhibited in evidence constituted the whole record of the Union Bank case. For aught that appears, there may have been one or a dozen alias writs or counterparts sent to other counties, and by their means service obtained upon Rumfelt. The judgment solemnly declares that he was “ duly served with process,” and this record imports absolute verity. It is contradicted by nothing in the orders of publication or in the return upon the writ introduced, for these are simply silent on the. subject, when we consider how many other methods there were for accomplishing the fact stated. It will be time enough to assume that the judgment is negatively falsified by the rest of the record, when it shall be made to appear that the entire record is before us.

In Freeman vs. Thompson, (53 Mo., 183) this subject is so exhaustively discussed, that no additional light can be thrown upon it here. . In Baker vs. Stonebraker, (34 Mo., 172) and in Warren vs. Lusk, (16 Id., 102) it was decided by this court that a recital in a judgment that the defendant appeared by attorney, was conclusive, and the defendant could not, in a collateral proceeding, deny the fact of authority given by him to the attorney. If a record implication of the relation existing between the defendant and an attorney be thus unimpeachable, how much more so should be the declaration of a service performed by the court’s ministerial officer, direct information whereof is provided for in the sheriff’s return— a part of the record itself.

In the giving and refusing of instructions, and in the determination of the cause, the court below was governed by the principles here recognized. Its judgment is affirmed with the concurrence of the other judges.