239 S.W. 80 | Mo. | 1922
This suit was brought to ascertain, determine and quiet title to the west half of the Northeast Quarter and the Southeast Quarter of Section 20, Township 34, Range 1, in Iron County. From an adverse judgment the Furnace Company appeals.
Sam M. Brewster answered and claimed title to the west half of the northeast quarter. After the case developed it was stipulated that the trial court should, as to that tract, render judgment according to Brewster's claim. The cause proceeded with respect to the other tract upon an issue made by the answer of Elpha L. Miller. The other parties defendant made default.
Miller owned the land prior to 1899. In that year a suit for taxes on the tract in question was begun, went to judgment, and a sale was had. It is conceded that appellant holdsTax Suit: whatever title passed by this sale. In the tax suitPublication: service was had by publication. Whether thisPresumption. service was good is the single question in the case. The record of the circuit court in the tax suit sets out in full the order authorizing notice by publication. In this entry appears the following: "Now at this day comes the plaintiff, W.T. O'Neal, Collector of the Revenue of Iron County, Missouri, and files his petition and affidavit, setting forth, among other things, that the defendants are non-residents of the State of Missouri, and cannot be summoned in this action by the ordinary process of law; it is therefore ordered," etc., that publication be made. The usual recitals as to the contents of the notice then *520 follow. No criticism of the order of publication or objection to the sufficiency of the publication itself appears in the brief. Respondent Miller offered the petition in the tax suit. It contains no allegation of non-residence. This petition is signed by the collector and his attorney, and these signatures are followed by this: "Subscribed and sworn to before me this 7th day of August, 1899." This is signed by the clerk of the circuit court.
There is no denial that under the statute in force in 1899 and now (Sec. 575, R.S. 1899; Sec. 1196, R.S. 1919), jurisdiction could have been given to order notice by publication in the tax suit either (1) by an allegation of non-residence in the petition, or (2) by filing in the case an affidavit containing an allegation of non-residence. [Tooker v. Leake, 146 Mo. l.c. 433.] The order as made and as shown by the record recites that the collector filed his petition and affidavit setting forth the non-residence of the defendants in the tax suit. Respondent contends that the jurat of the clerk appended to the petition either is the affidavit or proves that the verified petition is the affidavit referred to in the order; and, therefore, since no allegation of non-residence appears in either, there was no jurisdiction to make the order. There can be no doubt that the petition and the jurat did not authorize an order of publication. Neither can there be any doubt that the clerk made such an order; either with or without authority, nor that the court took jurisdiction of the parties defendant and rendered a proper judgment, nor that the record recites that an affidavit was filed which contained an allegation of non-residence. In such circumstances, the filing of a proper affidavit would be presumed in the absence of a showing to the contrary. [Adams v. Cowles, 95 Mo. l.c. 509.] There is in this case an express recital that an affidavit was filed and that it contained the jurisdictional recital. In such case there can be no legitimate inference from the presence of a mere jurat at the end of the petition that that was not done which the record recites was done and which the court must have held was done before it could *521 take or exercise jurisdiction as it did. The failure to find the affidavit among the files did not overcome the recital and the presumption. [Adams v. Cowles, supra.]
The judgment is reversed and the cause remanded with directions to enter judgment in accordance with the views herein expressed. All concur.