Charley v. Kelley

Maceaklane, J. This is an action of ejectment to recover an undivided interest in a lot in Kansas City. The judgment of the circuit court was for defendant and plaintiff has appealed. — 138 — Plaintiff claims title to one-half of one-third interest as an heir of William Grillis, and one-half of one-third as heir of his deceased brother, Francis Boyer. Defendant bases his title to the property upon a sheriff’s sale and deed under an execution upon a judgment of the circuit court of Jackson county, in favor of John Halpin against the said Boyer, plaintiff and others. It is conceded that plaintiff has title unless the sheriff’s deed was sufficient to transfer it to the grantee. The judgment was upon a special tax bill charged against the property in dispute. At the time the suit oh the tax bill was commenced, both plaintiff and his brother, Francis Boyer, were minors, and nonresidents of this state. The suit for enforcing the tax bill against the property charged was authorized by the charter of Kansas City. That the execution, levy, sale and sheriff’s deed were regular is conceded by plaintiff. The objections are, first, that the court, under the proceedings had, did not acquire jurisdiction of the persons of plaintiff and his brother; and, second, the court had no authority to enter the judgment against plaintiff for the reason that he was at the time a minor and no guardian ad litem was' appointed to represent him. The petition in the suit was filed April 16, 1875. The following order was read from the records of the court: “Be it remembered, that on the-day of -, A. D. 1875, in vacation of the circuit court of Jackson county, Missouri, at Independence, the following, among other proceedings, were had and made, to wit: ” Then follows the style of the case, naming John Halpin. as plaintiff, and Francis Boyer, a minor under twenty-one years of age, James Charley, Jr., and others, as defendants, and the notice proceeded: “To Francis Boyer and James Charley, Jr.: “You are hereby notified that an action has been — 139 — commenced against you, together with thé aboye mentioned defendants, by the above plaintiff, in the circuit court of Jackson county, at Independence, Missouri.” Then follows a statement of the object and general nature of the petition and a specific description of the property charged with the lien of the tax bill, and concludes as follows: “Unless you be and appear at the next term of said court, to be begun and holden at the. courthouse in said city of Independence, on the thirteenth day of September, 1875, and on or before the third day of said term, if the same so long continue, and if not then before the end of said term, the petition will be taken as confessed, judgment rendered and the lien enforced against said real estate as prayed for in said petition. It is further ordered that publication be made in the '■Evening Mail,’ a newspaper published in the county of Jackson, Missouri, for four weeks successively, the last insertion to be at least four weeks before the commencement of next term of said court. “[Attest] Wallace Laws, “Clerk. “Tichenor & Warner, for plaintiff.” To the petition was attached an affidavit made by James Gibson, “that Francis Boyer, minor under twenty-one years of age, and James Charley, Jr., defendants in the above entitled cause, are nonresidents of the state of Missouri, so that the ordinary process of law can not be served upon them.” It was shown by oral evidence that Tichenor and Warner were the attorneys for plaintiff in the suit, and that James Gibson was a clerk in their office, at the time also a practicing lawyer, and had charge of the collections of these tax bills, and that he prepared the petition and made the affidavit and attached it to the petition. — 140 — On the twentieth day of September, 1876, a judg?menf was rendered which contained the following recital: “Now comes plaintiff by attorney and shows to the court that publication has been made in this cause according to the statutes in such cases made and provided, and in accordance with the orders hereinbefore made in this cause, as to defendants’ nonresidence, to wit: Francis Boyer, James Charley, Jr.,” (and the other defendants, naming them) “and it appearing to the court that defendants Francis Boyer and Mary Messick are minors, though duly summoned, they have neglected to procure the appointment of a guardian to defend the suit, though more than three days of the term have elapsed, it therefore appoints J. Brumback guardian of said infant defendants in the defense of this suit, and thereupon he filed answer for said defendants, and this cause coming on for trial and being regularly reached on the docket *' * This was followed by a regular judgment, charging the lot in suit with the amount of the tax bill, found to be $134.43, and ordering a special execution. The charter of Kansas City, 1875, by virtue of which the tax bills sued on were issued, in article 8, section 4, page 75, provides that “any such tax bill * * * may be collected by suit * * * in any court of competent jurisdiction * * *. In case any owner of the ground, or of any interest therein, is unknown, or a nonresident of the state, suit may be brought against such owner separately, or together with others, and such nonresident or unknown owner shall be brought in by an order or notice against such owner, published as an ordinary suit to enforce a lien against land; and any owner may be brought in by like notice, so published in any state of fact where it would be proper to so publish in a suit to enforce a lien on land.” — 141 — I. The first contention of appellant is that in the suit of Halpin against plaintiff and his brother the circuit court was exercising special statutory powers, and the jurisdiction, as of inferior tribunals, must appear on the face of the record, otherwise no valid judgment could have been rendered; that no presumptions favorable to the validity of the proceedings and judgment can be indulged. The position is not sound. The circuit court in proceeding to judgment in the enforcement of these liens, was not exercising mere statutory powers. The causes of action were statutory, but the circuit court, in the exercise of its general jurisdiction, was given cognizance over them. No special jurisdiction is conferred by the charter, but the cause of action was brought within the general jurisdiction of the court. The charter provides that, any such tax bill may be collected by suit" “in any court of competent jurisdiction'.’7 No special or summary proceeding in derogation of common law, is required to be followed. In such case the same presumptions attend its jurisdiction, in the silence of its record, as in the case of judgments or decrees rendered in the exercise of its general jurisdiction. They are not open to collateral attack. Brown v. Walker, 11 Mo. App. 230; s. c., 85 Mo. 262; Wellshear v. Kelley, 69 Mo. 351; Allen v. McCabe, 93 Mo. 143. II. The order for the publication of notice was spread upon the record, and shows that it was made in vacation. It was signed by the clerk and these facts sufficiently show that it was made by the clerk in vacation and a recital of that fact on the record was unnecessary. The statute only requires that the court, in which the suit is brought, “or, in vacation, the clerk thereof, shall make an order directed to the nonresidents or absentees, notifying them of the com — 142 — mencement of the suit, and stating briefly the object and general nature of the petition, * * * and requiring such defendant or defendants to appear on a day to be named therein, and answer the petition, or that the petition will be taken as confessed.” R. S. 1879, sec. 3494. The order as made and published, meets substantially every requirement of the statute. It was not necessary that the record should contain a recital that the order was made by the clerk or that it was made upon the authority of an affidavit. It is insisted further that the order of publication is insufficient, for the reason that it does not appear to be connected with any proceeding in the cause, and it was nowhere ordered that the notice be published. The judgment recites a finding by the court that publication had been made “in the cause according to the statutes in such case made and provided, and in accordance with the orders hereinbefore made in this ease as to defendants nonresidents, to wit: Francis Boyer, James Charley” (and others, naming them). It is said by Judge Napton in Kane v. McCown, 55 Mo. 200: “When the record shows a finding of the court, that there has been a legal order of publication, and a publication made in pursuance of such order, it is not apparent how this finding of determination of fact can be attacked collaterally any more than any other conclusion of the court in the course of its proceeding to final judgment.” Brawley v. Ranney, 67 Mo. 283. The court found that an order, previously made, was duly published. This finding is not assailable in this suit. The order of publication concludes as follows: “It is further ordered that publication be made in the 1 Evening Mail,’ ” etc. That order is found following immediately after the notice, and the court finds that the notice was duly published. — 143 — III. The affidavit of Gribson, if made for plaintiff, was sufficient to authorize the order of publication. The statute requires that the affidavit of nonresidence shall be made by the “plaintiff or other person for him.” The court, in finding that an order of publication was made, must have found that the affidavit, upon which it was based, was made by Gribson for plaintiff. We must, at any rate, indulge the presumption that it so found. This case is different from that of Adams v. Cowles, 95 Mo. 506. In that case no affidavit appeared among the files. In this case an-affidavit, sufficient in form and substance does appear, the only deficiency appearing on its face, being a failure to recite that it is made for the plaintiff. The fact omitted was susceptible of proof and we must presume that the court satisfied itself by evidence before rendering judgment. IY. The evidence on the trial of this case shows that when the case of Halpin v. Charley et al. was tried the said Charley was a minor, and it did not appear that a guardian ad litem was appointed to represent him. Plaintiff now claims that this, was an omission fatal to the judgment as to him, and therefore fatal to the sale of his interest in the land. The statute provided: “After the commencement of a suit against an infant defendant, and the service of process upon him, the suit shall not be prosecuted any further until a guardian for such infant be appointed.” ‘R. S. 1879, sec. 3477. The statute is very positive in its requirement and a court would certainly commit error in proceeding to final judgment against an infant without the appointment of a guardian ad litem. Yet jurisdiction is obtained by service of process and the appointment of a guardian is not jurisdictional but merely a step in the proceeding. The rule is that such a judgment is void — 144 — able only and not void, and can be enforced until reversed for error, or set aside by a direct proceeding. Jeffrie v. Robideaux, 3 Mo. 33; Townsend v. Cox, 45 Mo. 402; 9 Am. & Eng. Encyclopedia of Law, 158, and cases cited in note. Finding no error, the judgment is affirmed. Black, C. J. does not sit; the other judges concur.