Laney v. Garbee

Macfarlane, J. Ejectment to recover a tract of land in Christian county. The answer admitted the possession, and denied all other facts. The land was entered by plaintiff, which he showed and rested. Defendants introduced in evidence, in support of their title, a deed from the sheriff of the county, conveying the land to one W. R. Jones, and a deed from Jones to defendant Wilkinson. The other defendants were tenants of Wilkinson. The sheriff’s deed was under an execution sale upon a judgment of the circuit court of Christian county against plaintiff, for delinquent taxes on the land for the years 1881, 1882, 1883. The tax suit was brought to the September term, 1885, of said circuit court. At that term, a final judgment by default was rendered for $37.35, the amount of unpaid taxes; an order enforcing the lien of the state on the land in controversy, with other lands, was made, and special execution ordered. This judgment, which is the basis of defendants’ title, is attacked by plaintiff for want of jurisdiction of the person of John Laney, defendant therein. The judgment contains the following recital: “Now, at this day, comes on to be heard this cause, [359] and the plaintiff appearing by attorney, and the defendant, though duly served with process of summons more than fifteen days before the first day of this term of court, comes not, but makes default.” To overcome this recital, plaintiff offered in evidence the original summons in the case, and the return of the sheriff thereto. The summons was in the usual form, and the return was as follows: “Executed the within writ, in the county of Christian, on the fourth day of August, A. D. 1885, by delivering a certified copy of this writ and the petition to a member of John Laney’s family over the age of fifteen years.” It was also shown that, during the years 1884 and 1885, John Laney was a resident of Greene county. Defendants objected to this evidence on the ground that the recitals of the judgment were conclusive, and could not be' contradicted or impeached collaterally. The objection was overruled. The court, trying the facts as a jury, declared the law to be that, under the •evidence, the finding should be for plaintiff, and so judgment was entered. Defendant appealed. The service, as shown by the return of the sheriff, was not according to any method known to the law, and was equivalent to no service at all. The third clause of section 3689, Revised Statutes, 1879, under which, doubtless, the service was attempted, required a copy of the petition and writ to be left “at the usual place of abode” of defendant, “with some person of his family over the age of fifteen years.” The service here provided is constructive, and must conform, at least, substantially to the requirements of the statute. Bank v. Suman, 79 Mo. 530; Brown v. Langlois, 70 Mo. 226; Blodgett v. Schaffer, 94 Mo. 669. It is insisted that the manner of service cannot be shown to contradict the recitals of the judgment. If the entry of the judgment upon the books of the court constituted all the record in the case, the contention would have weight. That is not the case. The return [360] of the sheriff is as much a part of the record as the judgment entry. The recitals of the service, contained in the judgment, cannot import greater verity than the return itself shows. Since the decision in the case of Cloud v. Pierce City, 86 Mo. 358, where the question was exhaustively considered, it has been held in this state, even in collateral proceedings, that the jurisdictional recitals of a judgment of due service of process will be controlled by, and must yield to, the service as it appears upon the whole record. The recitals of the judgment will be deemed to refer to the kind of service shown by other parts of the record. Milner v. Shipley, 94 Mo. 106; Adams v. Cowles, 95 Mo. 506; Crow v. Meyersieck, 88 Mo. 415 ; McClanahan v. West, 100 Mo. 321; Blodgett w. Schaffer, 94 Mo. 671. The service of process in this case was wholly insufficient and unauthorized by law, and, in consequence, the court never obtained jurisdiction of the person of defendant therein, and the judgment rendered was without validity, force or effect, and defendant acquired no title by the sale and sheriff’s deed thereunder. Judgment affirmed. All concur.