150 Mo. 343 | Mo. | 1899
This is an action of ejectment for the possession of the northeast quarter of the northeast quarter of section thirty-one, township forty of range thirty-one in Bates county.
The petition is in the usual form, and the answer a general denial.
Plaintiffs recovered judgment in the court below for the possession of the land, from which judgment defendant after an unsuccessful motion for a new trial appeals.
Both parties claim title under one O’Brian Quinn, the plaintiffs as his only heirs at law, the defendant by virtue of a judgment of the circuit court of Bates county in favor of the State of Missouri, at the relation and to the use of O.
The service of process was by publication and the judgment by default. The order of publication was against the southeast quarter of the southeast quarter of section thirty-one, and not against the land described in the judgment, execution and sheriff’s deed, so that the only question to be passed upon by us is with respect to the validity of the judgment, and subsequent proceedings thereunder.
The position taken by plaintiffs is that the judgment, execution and the sheriff’s deed made in pursuance of the sale made thereunder were void, because the land therein described was not the same land described in the order of publication, by reason of which the court was without juristion and the judgment and all subesquent proceedings thereunder void. Upon the other hand defendant’s position is, that in a suit for back taxes against land an order of publication ag'ainst non-resident or unknown parties need not describe it.
In suits for the collection of delinquent taxes against land there can be no personal judgment against the owner even where there is personal service, and it is only by the petition and the publication of the notice ordered to be made that the court acquires jurisdiction of the property and of the defendant. Prior to 1889, in orders of publication in suits for the purpose of enforcing the State’s lien against land for delinquent taxes, it was necessary that the order describe the land proceeded against, otherwise the court acquired no jurisdiction over it, and the judgment was void. [Milner v. Shipley, 94 Mo. 106.] The order of publication is as much a part of the record proper as the judgment itself. And “if there is any conflict between the recitals in the judgment,
This statute underwent critical and careful review by Sherwood, J., in tbe recent cáse of Winningham v. Trueblood, 149 Mo. 572, and it was ruled that in all suits for delinquent taxes tbe purpose of which is to enforce tbe State’s lien against tbe land, and tbe service of process is constructive, that is, by publication, the land must be described in tbe order of publication, otherwise tbe judgment will be void.
In that ease Goldsworthy v. Johnson, 87 Mo. 233, was expressly overruled. Nothing can be added to tbe opinion in tbe Winningham case with respect to what was said upon this subject, and that case is decisive of tbe case at bar.
Tbe judgment is affirmed.
