State ex rel. Petts v. Staley

I. Sherwood, C. J. One question in this ease, the jurisdiction of a justice of the peace to take cognizance of -suits for the enforcement of the lien for back taxes, has been recently ruled in this court in favor of said jurisdiction, and in favor, also, of the authority of the justice, in the event the summons issued be returned non est, of ordering publication to be made, and we adhere to the ruling then made. State ex rel. Van Brown v. Branham, 75 Mo. 530. II. Section 6836, which we have already decided confers jurisdiction on justices of the peace, in cases of this sort, provides that “ if the defendant or defendants fail to appear at the time and place required by said order, and defend said 'cause of action, judgment by default shall be rendered as prayed, which judgment shall be as binding and effectual against the property on which the lien is sought to be enforced as if there had been personal service on the defendant.” But the following section, 6837, provides that “ in the case of suits against non-resident, unknown parties, or other owners on whom service cannot be had by ordinary summons, the proceedings shall be the same as now provided by law in civil actions affecting real or personal property.” On turning to section ¿5499, relating to prac [160] tice in civil cases, we find that before publication can be had against unknown parties the plaintiff is required to allege under oath that there are persons interested in the subject matter of the petition whose names he cannot insert therein because they are not known to him, describing the interest of such persons, and how derived so far as his knowledge extends, and that thereupon an order of publication is to be made, as in case of non-residents, which shall recite all allegations in relation to the interest of such unknown parties. We do not doubt that this section is to be considered as part and parcel of the revenue law, as far as concerns unknown defendants, and the proper method of procedure against them, since section 6837, as above seen, expressly refers to the method of service on such parties now provided by law in civil actions affecting real or personal property. This being true, we are not of opinion that the justice of the peace acquired any jurisdiction in the present instance. The prerequisites of the statute as heretofore set forth, had not been complied with, and consequently there was no basis on which the jurisdiction of the justice of the peace in the case before us could rest. That officer had, indeed, jurisdiction to act in that class of cases, because the statute conferred that jurisdiction upon him, but no jurisdiction to act in this particular case, because of the failure to set forth under oath, in the petition for the enforcement of the tax lien, the interest of the unknown heirs and how derived, and because of the further failure to recite in the order of publication all the allegations contained in the petition in relation to the interest of such unknown parties. Therefore, judgment affirmed. All concur.