| Mo. | Mar 17, 1903
This suit was instituted in Ozark county, Missouri, on December 20,' 1897. The nature of the action was to have the court ascertain and declare the title to the lands in dispute. That we may fully understand the issues in this cause, we have inserted the petition and answer.
The' petition, omitting caption, is: “Plaintiffs state that they are the owners in fee simple of the following described real estate, situate in Ozark county, Missouri, to-wit, all of section fourteen and the northeast quarter and the east half of northwest quarter of section twenty-four, township twenty-four north, range thirteen west; that defendant claims title to said above-described real estate through a tax deed executed by M. P. Tate, sheriff of Ozark county, Missouri, on October 19, 1882; that said deed was executed by M. P. Tate, sheriff aforesaid, by virtue of a sale made under an execution issued from the circuit clerk’s office of Ozark county, Missouri, on a transcript judgment from a justice of the peace and a judgment of the circuit court; that said judgments were wholly void and passed no title. Wherefore; the plaintiffs pray the court to ascertain and determine the estate, title and interest of plaintiffs and defendant respectively in said real estate above described and to define and adjudge by its judgment or decree the title, estate and interest of the parties severally in and to such real estate.”
The answer, omitting caption, is: “Defendant for answer says that he denies each and every allegation therein contained, and not herein admitted. Defendant says he is the absolute owner in fee of all the land desciibed in plaintiffs’ petition and prays judgment for the same.”
When the cause was called for trial, respondent by his attorney admitted that respondent had no right or title to the northeast quarter and east half of the northwest quarter of section 14, and the northeast quarter and east half of the northwest quarter of section 24,
During the progress of the trial, the following agreement as to this cause was made:
“It is agreed by and between the attorneys for plaintiffs and defendant that the common source of title is John Whitcomb, by deed to him dated August 20, 1870, by James Watson, patentee, to the south half and the west half of' the northwest quarter of section 14, township 24, range 33, and that appellants are entitled to recovery unless respondent has title by reason of the sheriff’s deed.”
'Appellants introduced in evidence their claim of title from Whitcomb to the plaintiffs in this action.
Defendant offered in evidence a sheriff’s deed based on a judgment rendered by the circuit court of Ozark county, on October 28, 1878, conveying the land in dispute to one J. S. Plattenburg; also deed from Plattenburg to the defendant in this suit.
Plaintiffs then offered in evidence the petition in a suit for back taxes, filed in the circuit court of Ozark county to the April terra, 1878, wherein the State of Missouri, at the relation and to the use of R. Q. Gilliland, was plaintiff, and John Whitcomb, defendant, to enforce the State’s lien for taxes oh the lands involved in this controversy.
Order of publication issued upon the filing of said petition to recover the back taxes, and plaintiffs offered in evidence such publication, which is as follows:
“order oe publication.
“The State of Missouri, at the relation and to the use of R. I. Gilliland, Collector of Ozark county, v. John Whitcomb.
“Now comes the plaintiff herein before the undersigned clerk of the circuit court of Ozark county, in*26 yacation, and files Ms petition and affidavit, stating, among other things, that the defendant is a non-resident of this State; whereupon it is ordered by the clerk that said defendant be notified by publication that plaintiff has commenced a suit against him in this court,, the object and nature of .which is to enforce the lien of the State of Missouri, for back taxes for the years 1865, ’66, ’67, ’68, ’69, ’70, ’71, ’72, ’73, ’74, ’75, and ’76, amounting to the sum of $248.02, on the following described real estate, situated in the county of Ozark, to-wit, section 14, township 24, range 13, and that unless the said defendant be and appear at .the next term of this court, to be held on the third Monday in April next, at the courthouse in the town of G-ainesville, county of Ozark, State of Missouri, and on or before the third day thereof plead, answer or demur to the petition in said cause, the same will be taken as confessed and judgment rendered accordingly.
“And it is further ordered that a copy hereof be published, according to law, in the Ozark County News,, a newspaper published in the county and State aforesaid.
“Attest: John W, Harlin, clerk.”
“PROOP OP PUBLICATION.
“I, "W. A. Love, editor of the Ozark County News, a newspaper published in the county of Ozark, State of Missouri, certify that the order of publication, a copy of which is hereto annexed, was published in the Ozark County News for'four successive weeks, the first insertion being on the 19th day of February, 1878, in numbers as follows: 19, 20, 21, 22.
“~W. A. Love.
“Subscribed and sworn to before me this 18th day <3f April, 1878.
“(Seal). John W. Harlin, circuit clerk.'
“Filed April 18, 1878. John W, Harlin, clerk.”
“State of Missouri at the relation and .to the use of R. Q. Gilliland, Collector, Plaintiff, vs. John Whitcomb, Defendant, suit on delinquent lands. .
“Now at this day, this cause being called for trial, the plaintiff appears, by attorneys, but the defendant comes not, but makes default, and it appearing that this suit was brought to the court, by the above-named-collector in and for Ozark county, Missouri, for the purpose of enforcing the lien of the State of Missouri, under the act of the General Assembly, approved April' 12, 1877, upon the following described real estate, to-wit, section 14, township 24, range 13 west, for the taxes, interest and costs due thereon for the years 1865, ’66, ’67, ’68, ’69, ’70, ’71, ’72, ’73, ’74, ’75 and ’76, and for a decree of this court to sejl said real estate or so much thereof as shall be sufficient to pay and satisfy said taxes, interests and costs, the sum of two hundred and eighty-seven dollars and eleven cents,' which said sum is ascertained by a taxbill filed here in court by said collector, and by him duly certified as the law directs, and the court finds that said interest, taxes' and cost had been duly assessed and charged against said real estate, at the several times aforesaid by the proper officers, agents of said State of Missouri, under the then existing laws of said State, and that the defendant had wholly failed and neglected to pay the same or any part thereof, although often requested to do sú by plaintiff’s agents, and that defendant had been notified of the commencement of this action by publication in the Ozark County News, a weekly newspaper printed' and published in Ozark county, Missouri, for four weeks successively, the last insertion being at least four weeks before the commencement of this term of this*28 court, and that the aforesaid sum of taxes, interest and cost is still due and unpaid. It is, therefore, considered and decreed by the court that the lien of the State of Missouri be enforced upon the above-described real estate, and that the same, or so much thereof as shall be sufficient to pay and satisfy said taxes, interest and costs,' be sold according to law, for that purpose, and that plaintiff have and recover of and from the defendant her costs and charges in this behalf laid out and expended, and it is ordered by the court that a special execution issue against said lands. ’ ’
Appellants also introduced judgment of the Ozark Circuit Court, rendered on October 28, in a suit to enforce the State’s lien for taxes against said section 14, in which said State of Missouri, at the relation and to the use of R. Q. Gilliland, was plaintiff, and John Whitcomb was defendant, which judgment is as follows:
“State of Missouri, at the relation and to the use of R. Q. Gilliland, Collector, vs. John Whitcomb, suit on delinquent lands.
“Now, at this day, this cause being called for trial, the plaintiff appears by his attorney, but the defendant comes not, but makes default, and it appearing to the court that this suit was brought by the above-named collector in and for Ozark county, Missouri, under act of the General Assembly of the State of Missouri, approved April 12,1877, for the purpose of enforcing the lien of the State and county aforesaid, upon the following described lands, to-wit, all of section 14, of township 24, range 13, for the taxes, interest and cost due thereon for the years 1865, ’66, ’67, ’68, ’69, ’70, ’71, ’72, ’73, ’74, ’75, ’76, and for the purpose of obtaining a decree of this court for the sale of said land, or ,so much thereof as- shall be sufficient to pay and satisfy said taxes, interest and cost, and it appearing to the satisfaction of the court that at the last term of this court an interlocutory judgment was' rendered against the defendant, and it appearing to the court*29 that the whole of said taxes, interest and costs are still dne and unpaid the plaintiff, and that the same had been assessed and duly charged against said land at the several times, as before stated, by the proper officers, agents of the State >and county aforesaid, and that the defendant had wholly neglected to pay the same or any part thereof, although often required to do so by the different collectors of said State and county, and the court further finds that said taxes, interest and costs charged against said land, amount to the sum of two hundred and ninety-three dollars and fifty-three cents, taxes and interest, and the sum of thirty-five dollars and twelve cents for his costs in this behalf laid out and expended. It is, therefore, considered and ordered by the court that the plaintiff have and recover of and from the defendant the amount of taxes and interest, together with his cost of this suit, and that the above-described land, or so much thereof as shall be sufficient to satisfy said taxes, interests and costs due thereon, be sold according to law, for which a special execution may issue against said land.”
Upon this last-mentioned judgment, the special execution was issued, the land levied upon by virtue of it and sold, and in pursuance of such sale the deed in dispute- (which is as follows) was executed.
“To all to whom these presents shall come: I, Robert P. Ellison, sheriff of the county of Ozark, State of Missouri, send greeting: "Whereas, on the 28th day of October, A. D. 1878, judgment was rendered in the circuit court, in the county of Ozark,- State of Missouri, in favor of the State of Missouri, at the relation and to the use of Robert Q. Gilliland, collector of the,revenue of Ozark county, in the State of Missouri, and against John Whitcomb, for the sum of $293.53 for certain delinquent state, county and special taxes and interest hereinafter set forth, assessed and found by said court to be due and unpaid upon the following described real estate, viz.:
*30 
“And that the taxes and interest found due upon said real estate and the years for which the same were assessed are upon each of the above-described tracts, as follows, viz.:
TEARS EOR WHICH TAXES WERE POUND DUE.
Tract No. 1. Total.
1805, $11.36; 1866, $17.04; 1867, $13.49...'..'.....$41.89
1868, $ 9.47;' 1869, $17.04; 1870, $42.28.......... 68.79
1871, $30.18; 1872, $28.03; 1873, $&5.75.......... 83.96
1874, $26.50; 1875, $40.22; 1876, $3217.......... 98.89 $293.53
“And also certain costs which have been taxed at the sum of $35.12, which said several sums of taxes, 'interests and costs, were declared by said court to be a lien in favor of the State of Missouri upon the above-described tracts of real estate.
“And, whereas, it was decreed by said court that the lien of the State of Missouri upon said real estate for taxes, interests and costs be enforced, and that said real estate, or so much.thereof as may be necessary to satisfy such judgment, interests and cost, be sold according to law; upon which judgment a special execution and order of sale was issued from the clerk’s office of said court, in favor of the State of Missouri, to the use of said collector and against the said John Whit-comb, dated the 28th day of February, A. D. 1879, and directed to. the'sheriff of the county of Ozark, and directing said sheriff to sell said real' estate to satisfy such judgment, interest and costs, and the same was to me delivered on the 4th day of March, A. D. 1879, by virtue of which, said execution, I, the said sheriff, did, on the 4th day of March, A. D. 1879, levy upon and 'seize the above-described real estate, situated in my ‘said county;, and having, previously to the day of the sale hereinafter mentioned, given at least twenty days ’ notice of the time and place of the sale, and of the real*31 estate to be sold, and where situated, as the law directs, by advertisement in the Weekly Ozark County News, a newspaper published in my said county, by virtue of which said execution and notice, I did, on the 22nd day of April, A. D. 1879, between the hours of nine in the forenoon and five in the afternoon of that day, agreeably to said notice, at the courthouse door, in my said county of Ozark, and during the session of the circuit court, at the April term thereof, A. D. 1879, expose to sale at public auction, for ready money, the above-described real estate, and J. S. Plattenburg being the highest bidder for the following described real estate, viz.: Northeast quarter of northeast quarter for the sum of one dollar, and the southeast quarter of northeast quarter, for the sum of one dollar; the northwest quarter of northeast quarter, for the sum of one dollár; the southwest quarter of northeast quarter, for the sum of one dollar; the northeast quarter of southeast quarter, for the sum of one dollar; the southeast quarter of southeast quarter, for the sum of one dollar; the northwest quarter of southeast quarter, for the sum of one dollar; the southwest quarter of southeast quarter, for the sum of one dollar; the northeast quarter of northwest quarter, for the sum of one dollar; the southeast quarter of southwest quarter, for the sum of one dollar ; the northwest quarter of northwest quarter, for the sum of one dollar; the southwest quarter of northwest quarter, for the sum of one dollar; the northeast quarter of southwest quarter, for the sum of. one dollar; the southeast quarter of southwest' quarter, for the sum of one dollar; the northwest quarter of southwest quarter, for the sum of one dollar; the southwest quarter of southwest quarter, for the sum of one dollar; all in section fourteen, township twenty-four, range thirteen west, lying and being situate in the county of Ozark, State of Missouri, the said last above-described tracts were stricken off and sold to the said J. S. Plattenburg for the sum bid therefor by him, as above set forth.*32 Now, therefore, in consideration of the premises and of the sum of sixteen dollars to me, the said sheriff, in hand paid me by'the said John S. Plattenburg, the receipt whereof I do hereby acknowledge, and by virtue of the authority in me vested by law, I, Bobert P. Ellison, sheriff, as aforesaid, do hereby assign, transfer and convey unto the said J. S. Plattenburg all the above-described real estate so stricken off and sold to him that I might sell as sheriff, as aforesaid, by virtue of the aforesaid judgment, execution and notice.
‘ ‘ To have and to hold, the right, title, interest and estate hereby conveyed unto the said J. S. Plattenburg, heirs and assigns, forever, with all the rights and appurtenances thereto belonging.
“In witness whereof, I, Bobert P. Ellison, sheriff of the county of Ozark and State of Missouri, have hereto set my hand and affixed my seal this 25th day of April, A. D. 1879.
“Bobert P. Ellison.”
This deed was duly acknowledged in open court and properly filed for record and recorded in the recorder’s office of Ozark county. The record discloses that appellants, at the time said deed was offered in evidence, objected to its introduction, and excepted to the action of the court in overruling the objection.
Upon a submission of this cause to the court, it ascertained and declared the title, as to the land to which respondents entered a disclaimer, to be in appellants; as to the remainder of the land involved in this suit, it declared the title vested in the respondent, as is fully indicated by the decree rendered in this cause. To the action of the court in rendering such decree appellants objected and duly excepted at the time. Appellants’ motion for new trial being by-the court overruled, they in proper form .have prosecuted their appeal to this court.
It is very earnestly urged by appellants’ counsel, that the judgment in the tax proceeding was void, be
The judgment in this case, if otherwise valid, is not rendered void by reason of the erroneous assessment complained of by the appellant.
In the case of Gibbs v. Southern, 116 Mo. 204" court="Mo." date_filed="1893-05-24" href="https://app.midpage.ai/document/gibbs-v-southern-8010941?utm_source=webapp" opinion_id="8010941">116 Mo. 204, the court, through Gantt, J., says: “It was assumed that the circuit court derives its' jurisdiction to render a judgment from the existence of a valid assessment. This is most clearly not the law of - this State. The court derived its jurisdiction to hear and determine the cause in which the State to the use of the collector sued Eli Bower for the taxes therein claimed, from the Constitution and laws of this State. It was a court of general jurisdiction, proceeding according to the course of the common law. Its jurisdiction once obtained, as it was in that cause, upon a petition stating a cause of action, after due notification of the defendant by an order of publication regularly ordered and published, can not be questioned in a collateral suit, by the proof that some of its findings were erroneous. Its judgments are no less conclusive in tax suits than in any other causes over which it has jurisdiction by virtue of the Constitution and laws of the State. [Jones v. Driskill, 94 Mo. 190" court="Mo." date_filed="1887-10-15" href="https://app.midpage.ai/document/jones-v-driskill-8009186?utm_source=webapp" opinion_id="8009186">94 Mo. 190; Milner v. Shipley, 94 Mo. 106" court="Mo." date_filed="1887-10-15" href="https://app.midpage.ai/document/milner-v-shipley-8009171?utm_source=webapp" opinion_id="8009171">94 Mo. 106; Allen v. McCabe, 93 Mo. 138" court="Mo." date_filed="1887-10-15" href="https://app.midpage.ai/document/allen-v-mccabe-8009093?utm_source=webapp" opinion_id="8009093">93 Mo. 138; 1 Black on Judgments, sec. 247.] The court committed no error in refusing to admit the assessment books to show the lands were not assessed. The proof of that fact, if true, would not
This erroneous assessment at most was an irregularity, of which the appellant could not avail himself in a collateral proceeding. In the case of Allen v. McCabe 93 Mo. 138" court="Mo." date_filed="1887-10-15" href="https://app.midpage.ai/document/allen-v-mccabe-8009093?utm_source=webapp" opinion_id="8009093">93 Mo. 138, the court very clearly announces the doctrine that, “the same presumptions are to be indulged in favor of its judgments and the proceedings under it, in tax cases, as would be indulged in favor of any judgment of a court of general jurisdiction in an action between individuals.” To the same effect is the case of Wellshear v. Kelley, 69 Mo. 343" court="Mo." date_filed="1879-04-15" href="https://app.midpage.ai/document/wellshear-v-kelley-8006186?utm_source=webapp" opinion_id="8006186">69 Mo. 343.
The doctrine as contended for by appellants and which is supported by certain adjudications, might be applicable in cases where the sale of the land for taxes was authorized to be made in a summary manner without the judgment of any court, or where the sales were in pursuance of judgments rendered by courts exercising special or limited jurisdiction; but not so under the law in force governing the tax proceedings in this case, where the judgments are rendered by a court of' general jurisdiction.,
Where the court has jurisdiction of the subject-matter and acquires jurisdiction of the person by due process of law, its judgments are entitled to all favorable presumptions and can not be attacked in a collateral proceeding for a mere irregularity.
As to errors complained of, that the judgment does not conform to the requirements of the statute, we will say that what has beeh said upon the point as to errors in the assessment, is equally as applicable to this contention. The failure of the court to enter the judgment in the-precise method pointed out by the statute, was at most an irregularity, but did not render the judgment void, and it is unavailing to the appellant in this action.
The next contention to which our attention is very earnestly 'directed by’learned counsel for appellants is
Section 6, Laws 1877, page 386, under which the proceeding was instituted, provides that “in case of ■suits against non-residents, on whom service can not be had by ordinary summons, the proceedings shall be the same as now provided by law in civil actions affecting real or personal property,” and hence we are led to the provisions of the general law, in respect to orders of publication, to see the requisite steps to be taken in •order to procure an order of publication.
Section 575, Revised Statutes 1899, which is the same as the statute on this subject in force in 1877, provides, that ‘£ if the plaintiff shall allege in his petition, or at the time of filing the same, or at any time there after shall file an affidavit, stating that part or all of the defendants are non-residents ... so that the ordinary process of law can not be served upon them, the court in which said suit is brought, or in vacation the clerk thereof,” shall make the order of publication.
It will be readily .observed, that if the petition .makes the proper averments as to non-residence, no affidavit is required. In fact, the statute simply points out two methods of securing the order desired. This order can be issued by the court or the cleik.
The order of publication challenged in this case was issued by the clerk. The clerk was authorized to make this order upon the allegations in the petition, without any affidavit. It is true he recites in the order, .the making of the affidavit; this recital, even if not
This brings us to the last question involved in this case.
. Was the sale in the tax proceeding, which resulted in the execution of the tax deed by the sheriff, based upon a void judgment? The answer to this question settles this controversy.
Section 10, Laws 1877, page 387, in force at the time this tax spit was brought, provides that “all suits instituted under the provisions of this act shall be triéd .at the return term of the writ, unless continued for good cause shown.” It will not be disputed that this suit which resulted in the sale of the land in suit was, under the provisions of the statute, triable at-the April term, 1878, to which that suit had been brought. At the April term the judgment as heretofore indicated was rendered. This judgment, in our opinion, was a final judgment. The statute authorized its trial, the ‘court had jurisdiction of>the subject-matter and of the person of the defendant, and each and every fact necessary to be found is recited in that judgment.- The lien of the State is declared, the amount is ascertained; it is ordered that the land or so much thereof as shall be sufficient to satisfy the taxes, interest and cost, be sold and that special execution issue against said land.
At the October term, 1878, a judgment similar in all respects was rendered, in the same proceeding. In fact, it is substantially the same in form, except it recites the entering of an interlocutory judgment at the April'term. The execution was issued upon this last-mentioned judgment, rendered at the October term, 1878, and the sale and deed followed as a result of that judgment and execution.
Black, in his work on Judgments (2 Ed.), volume 1, section 24, says: “There can not be two final judgments in the same action.” And again in section 304, volume 1: “It has been held that the entry of a second judgment, in the same action, is not a vacation of the first judgment, if there is nothing further to show that such former judgment was regularly cancelled or set aside. ‘When a judgment is once entered of record, it must stand as the judgment, unless it is vacated, modified or disposed of by some means provided by law; entering additional judgment entries is not one of them.’ ”
The judgment at the April term, 1878, was complete in itself; there was no further action of the court necessary to give it force and power; it was the term at which the final judgment should be entered and the mere fact that the judgment at the October term, 1878, refers to it as an interlocutory judgment, does not make it so. Judgments are determined as to their finality by their force and effect, and not by a mere name.
The entire powers of the court in that tax proceeding was exhausted at the April term, 1878. Having entered a full and complete judgment for the recovery of the back taxes sued for, and having ordered the issuance of process to enforce such recovery, the defendant, in contemplation of law, was' not before the court at its October term, 1878, and the court having exhausted its full power in that proceeding at the April term, its judgment rendered at the October term was void. It had neither jurisdiction of the subject-matter nor of the person of the defendant.
In the case of Coe v. Ritter, 86 Mo. 277" court="Mo." date_filed="1885-04-15" href="https://app.midpage.ai/document/coe-v-ritter-8008378?utm_source=webapp" opinion_id="8008378">86 Mo. 277, there were two judgments entered; one was an original judgment, and following that there was a judgment “nunc pro tunc,” execution was attempted to be issued on the original judgment, but it conformed to the nunc pro' tunc judgment, and sale was made upon that execution. The court said: “And the sale, under the execution issued on the original judgment, was invalid, because it did not conform to such judgment, but to the one entered now for then in 1878. It follows, therefore, that,defendant’s title rests upon an execution with no judgment to support it. ’ ’
In Burnham v. Hitt, 143 Mo. 421, the court, speaking through Gantt, J., said, in respect to judicial sales: “A partition sale is a judicial sale and it is an indispensable prerequisite to the validity of such a sale that it should be based upon a valid judgment, decree or order of sale.”
1 The judgment of the October term, 1878, was void, and it being the basis of the execution, sale and deed, it follows that the tax deed introduced in evidence passed no title to the lands embraced in it, to the respondent.
This judgment being the very foundation upon' which the sale and deed must rest, and its absolute invalidity appearing from an inspection of the record in the táx proceeding, it was an error for the court to consider the deed, in reaching its conclusion in this cause.
With these views, as herein expressed, we have reached the conclusion that the decree of the court was erroneous, and its judgment will be reversed and remanded for a new trial, as indicated in this opinion.