Lenox v. Clarke

Adams, Judge, delivered the opinion of the court. This was ejectment for a lot of land in the City of St. Louis. Both parties claim through Hamilton Lenox, deceased, the plaintiffs as his heirs at law, and tlie defendant under a sheriffs deed. The only point raised here, is upon the validity of the sheriff’s deed. It was made in- virtue of two executions, one of which was issued in an attachment case in which this land was not attached, and there was no personal judgment, the other was on an execution issued on a judgment rendered in the Phelps County Circuit Court in favor of Elisha Q. Harding against Hamilton Lenox and F. M. Lenox. The defendant abandoned the attachment judgment, and relied on the judgment and execution in favor of Harding. The service of the summons in that case, as appears from the sheriff’s return was as follows: “ Served the within named H. Lenox a true copy of the within petition and reading this writ in Phelps County, Missouri, this April 12, A. D., 1861. T. F. Jones, Sheriff.” [117] There is no return at all as to the other defendant E. M. Lenox. The suit was upon a note, and the court rendered a judg- • ment by default against both defendants for the amount of the note; and it was upon an execution issued on this judgment that the land in dispute was levied upon and sold. This judgment was rendered under the practice act oí 1855. The 7th Section of Article five of that act, (Sec. 2 Revised Code 1855, page 1223) specifies several modes oí executing a summons. One is by reading the writ to the defendant and by delivering him a copy of the petition; this mode was pursued by the sheriff in that case, and the return substantially shows that this mode was complied with. The same section provides that where there are several defendants, a copy of the petition and writ shall be delivered to the first one summoned, and to those subsequently summoned a copy of the writ. The last provision was evidently intended to facilitate tlie'manner of service. It was not intended thereby to prevent a service on each defendant in the manner pointed out in the first clause. Where there were several defendants, if each was served with a copy of the petition and by reading the writ, that would be a literal compliance with the first clause of the section, and what would he good as to a single defendant ought to be good as to each of several defendants. The service therefore of the summons was sufficient to render a valid judgment against Hamilton Lenox. But there was no service at all on E. M. Lenox, and the judgment as to him was absolutely void. It was not a nullity, however, as to Hamilton Lenox; but being a joint judgment, it was erroneous and not void, as to Hamilton Lenox. In a collateral proceeding like this, errors of this sort cannot he inquired into, until set aside by a direct proceeding. Such a judgment must stand as valid against the party notified. A purchaser at sheriff’s sale looks to the judgment, execution, levy and sheriff’s deed. All other questions are between the parties to the judgment and the sheriff. As the judgment in this case was valid and only erroneous, the execution [118] issued thereon, and the levy and sheriff’s deed being good, passed the title from Hamilton Lenox, the defendant in the execution. Under this view, the judgment of the Circuit Court must be affirmed. The other Judges concur.