Shemwell v. Betts, 264 Mo. 268

Shemwell v. Betts

264 Mo. 268 | Mo. | 1915

Lead Opinion

OPINION.

BOND, J.

Judgment by Default: Notice by .Publication.

(After stating the facts as above.) — The allegations of the petition in’this case disclose that the circuit court of Oregon county obtained jurisdiction in the former action brought against plaintiff to quiet the title to the land by publication prescribed by statute in suits against non-residents. [R. S. 1909, sec. 1707.] In cases falling within the purview of that statute, and where it is strictly complied with, a court of general jurisdiction in the classes of cases mentioned in the statute obtains as much jurisdiction over the persons of non-residents upon a publication regularly made as if they were personally served with process. This has been too long the settled rule in this State to be further questioned. Under the statements contained in the petition in this case, the suit in which plaintiff was served by publication was one which fell *272within the class specified in the statute which, among others, embraces, to-wit:

“And in all actions at law or in equity, which have for their immediate object the enforcement or establishment of any lawful right, claim or demand to or against any real or personal property within the jurisdiction of the court.”

An action to quiet title undoubtedly is comprehended within the above quoted terms. The circuit court therefore in the suit brought by Brooks had jurisdiction of the subject-matter and of the person of .the present plaintiff, the defendant there, in the mode provided by statute for obtaining jurisdiction against non-resident defendants. This being so, its judgment in that action is unassailable by a bill in equity except for fraud in the very procurement of the judgment itself. None of the allegations in plaintiff’s petition in the present case disclose that the judgment in the former suit was fraudulently concocted. The allegations in the present action tend to show many grounds upon which plaintiff might have defended the former, but it has been uniformly held that the judgment of a court of competent jurisdiction having the jurisdiction of the cause and the parties, cannot be upset by a subsequent suit in equity on any ground which might have been interposed as a defense to the former action, unless the party entitled to such defense has been prevented from making use of it by the fraud of his adversary, unmixed with any negligence on his part. This principle has been recently reaffirmed in a case containing a full citation of the authorities in this State. [McDonald v. McDaniel, 242 Mo. l. c. 176, and cases cited.]

Our conclusion is that there was no error in the ruling of the learned trial court in sustaining the demurrer to plaintiff’s petition. The judgment herein is- affirmed.

All concur, Woodson, Jin a separate opinion.

Concurrence in Part

WOODSON, J.

Personal Service: Notice by Publication.

(Concurring in result, but dissenting as to some of the language used.) — On page three of my learned associate’s opinion - it is in substance, if not literally stated, that notice to the defendant, a non-resident, by publication, gave the circuit court of Oregon county £<as much jurisdiction over the persons of non-residents upon publication regularly made, as if they were personally served with process. ’ ’

While, if read in connection with the facts of this particular case, which it should he, there would be no-grounds for misunderstanding, but often both the bench and bar give effect to the general language used by the court, regardless of the limitations which should accompany the same, as shown by the facts of the case when carefully read.

Now, the truth of the matter is, that in the case of Brooks vs. the plaintiff here and others, referred to by my learned brother, in this case, was nothing more or less than a proceeding in rem to quiet title (which did not require, in that case, personal service), nor did it give the circuit court of Oregon county jurisdiction over the person of Shemwell, one of the defendants there and the plaintiff here, as that word is generally used in legal parlance. He was simply notified to appear, if he saw proper to so do, and defend that case; but if he deemed it wise to remain away and let judgment go by default against the res — the land — then the courts of this State, at least, will never again give him another opportunity to litigate the questions involved in such default case.

The question as to what effect has a judgment rendered by default against a non-resident defendant upon publication, has attracted the attention not only of the courts of this State, but of many, if not all of the courts of last resort in most of the other States and of the-*274United States. While there is a great conflict among them, yet, if critically read and considered, I believe the greatest confusion among them has grown out of the fact that guarded language has not at all times been used in dealing with the question of jurisdiction acquired over the person of non-residents by publication, and the character of judgment (the incident thereof) that may or may not be rendered thereon. If the decree is to affect the res only, then it is valid, that is, if it imposes no personal obligations upon the nonresident over and above debarring him of any future right to litigate the questions involved in that ease, affecting the res; but if the judgment should go further and impose any personal obligation upon or demand of any kind against the defendant therein, then under both the State and Federal constitutions that excess would be absolutely null and void; and may be attacked collaterally or otherwise. '

With the limitations herein suggested I fully concur in Brother Bond's opinion.