Morris v. Tracy

Allen, J. Objection is made to the consideration of the questions raised by the plaintiffs in error, on the ground that the motions filed on August 14 were mere repetitions of those passed on on April 29 ; that no case was made preserving the testimony introduced on the first hearing, and that the order then made, overruling the motions, became a final adjudication conclusive on the parties to the action. Conceding that this contention is sound as to the motions made by Dallas and William C. Morris on August 14, the second motion of Emma H. Durham, filed before the order was made confirming the sale, remained undetermined until the last hearing, and raises the substantial questions in the case. This motion she had a right to have determined; and the court ought to have passed on it before confirming the sale. The court having refused to do so, her rights are not prejudiced ;• and the record is sufficient to present the errors of which she complains. The attempted service on her by publication was voidable, if not absolutely void; and should have been set aside on her motion. For nearly twenty years she had borne the name of Durham, and no reason is suggested by the record why, if it were really intended to give her notice of the pendency of the suit, service on her by the name of Morris should have been attempted. The description of the land contained in the publication notice is ambiguous. It is a more apt description of .only 120 acres, all in the southeast quarter of the section, than of the 240 acres attempted to be conveyed to the purchaser by a definite and unmistakable description. This is [141] not like a case where personal service of process is made under a wrong name. Here the only service was by publication; and the only information the defendants could have that service on them was intended, was derived from the names used and-the description of the property. Emma Durham clearly had the right to remain out of court until brought in by a valid notice. There was most unseemly haste in forcing a sale of the land; especially in a case where the defendants were all non-residents of the State, and served by publication only. The statute allows any one or more of the parties to elect to take the land at the appraisement. It fixes no time within which this election is required to be made. On the twenty-seventh of April, William 0. Morris elected to take one quarter-section of the land at the appraisement. Under the circumstances of this case, we think this election was in time, and that the court erred in confirming the sale after such election. . It was error to direct a sale of the land without first affording a fair and reasonable opportunity to the owners to make their elections. All the judgments and orders of the court are reversed, and the cause remanded with direction to set aside the service of summons.