Janney v. Spedden

1. Practice — Publication—Judgment.—Where the defendant, a non-resident, is brought into court by an order of publication, and does not appear, the plaintiff cannot have any other or different relief than that prayed in his petition. If after publication the plaintiff amend his petition and take a different j udgment from that originally prayed, the judgment, will be null and void — R. C. 1855, p. 1280, § 12. After service of notice by publication, the defendant cannot be held to have any notice of amendments to the petition. 2. Equity — Judgment—Execution—Ejectment.—A bill in equity is not the proper remedy to recover possession of lands. Where the judgment upon which execution issued, and the land was sold by the sheriff, is void, the sheriff’s sale and deed will pass no title, and the defendant has an adequate remedy at law in ejectment against the purchaser at the sheriff’s sale in possession. Where there is an adequate and complete remedy at law, a court of equity will not interpose, unless upon some matters coming under some peculiar head of concurrent equity jurisdiction.

Error to Pettis Circuit Court. I. The facts stated in the petition do not authorize the judgment rendered. The petition contains no equity ; Jan-ney, being divested of title, has none over which a cloud can hang. II. The original suit was a proceeding in chancery, in which all admit that constructive notice by publication as to non-residents is sufficient. The court thereby obtained jurisdiction, and jurisdiction was not lost by a dismissal of so much of the petition as asked the enforcement of a vendor’s lien, and especially as Janney was a non-resident — January v. Rice, 33 Mo. 409; Head’s (Penn.) R. 39 ; .10 Yerg. 83. III. By the provisions of the statute, notice by publication to non-resident defendants, where a part or all of them reside out of the State, is effectual; and judgments rendered upon such constructive notice are valid within the State, and' can be enforced on any property within the State, whether such judgments are in rem or in personam, or whether the proceedings are at law or in equity. Secs. 13, 15 and 17 of Art. Y. apply to all ordinary actions — R. C. p. 1224-5. Such judgments are termed judgments ad rem, though no particular property is mentioned — ib. 1. Though formerly notice by publication to non-residents was given in chancery proceedings, now there is but one form of action,- and the article applies to such action whether legal or equitable. 2. Such is the reading of the statute, without ambiguity, and the intention of the Legislature is to be searched for in the words employed to convey it — Paulina’s Cargo v. U. S., 7 Crancli, 52; U. S. v. Fisher, 2 Cranch, 358. Where the intent is plain, nothing is left for construction. IY. The construction of the statute has been acted on by the Circuit Court, acquiesced in by the bar generally, and sanctioned by this court in a very recent decision — Pomeroy v. Betts et al., 31 Mo. 419. Y. The Legislature has the undoubted right to prescribe the manner of notifying non-resident defendants, and judgments rendered in pursuance ¡of such requirements will be valid although they have no extra-territorial effect. YI. The action in this case is properly brought — Smith’s Lea. Cas. 700 ; Granger v. Clark, 22 Me. 128. . It is the office of equity to remove obstructing titles and claims. The defendants Speddens being in possession, the remedy provided in § 62, art. 6, p. 1241, R. C. 1856, is unavailing. YII. The principle that judgments in personam, rendered without personal service, are against natural justice, only applies as to their validity extra territoriam. Natural justice and the principles of good government require that the property of the debtor, within the jurisdiction of the State, should, by law, be applied to satisfy the just demand of the creditor, (1) by proceedings in rent, by first attaching, and then ascertaining the justice and amount of the claim due, and a subsequent sale of the property to satisfy the demand; and (2) it cannot be less just or more injurious to the debtor for the court, by competent evidence, first to ascertain the demand and then by process of law appropriate the property in satisfaction. Such is the practice of other nations. The property alone is affected in either case: (1) in England, for instance, in respect to suits in personam, by a mere citation,. viis et modis (by ways and means), by posting up such citation on the Royal Exchange in London ; (2) in Scotland, by an edictal citation posted up at the quay at Leith, at the market-cross at Edinburgh, and at the pier and shore of Leith. Such proceedings are purely local, and locally valid, though elsewhere they will be held to be mere nullities.— Std’. Confl. L. § 546; Wheat. Internat. Law, 112. Every State has the power of “ prescribing the conditions on which suits at law may be commenced and carried on within its territory” — id. 113 & 163. YIII. Janney, by his appearance and motion on the return day of the execution to set aside the judgment and quash the execution, is estopped from obtaining relief in this suit — Harris y. Hardiman, 14 How. (U. S.) 335. IX. The court had no authority to annul the deeds and dispossess Hugh S. Spedden. The sale was regular ; he was an innocent purchaser for a valuable consideration, and his title cannot be disturbed — R. C. 1855, p. 1282, § 20 ; Shields v. Powers, 29 Mo. 315 ; 17 Mo. 71; Yoorhies v. Bk. of U. S., 10 Pet. 449. I. The court did not obtain any jurisdiction over the person of Janney by the order of publication made in the cause, so as to authorize a general judgment in personam, and consequently the judgment against him was null and void. II. If the facts stated in the petition and order of publication gave the court jurisdiction in rem to foreclose the equity of redemption and enforce the vendor’s lien, it did not confer .any jurisdiction over Janney in personam — Sto. Confl. L. § .539, &c.; Bigelow v. Stearnes, 19 John, 40 ; Hollingsworth ■y. Barbour, 4 Pet. 475 ; Williamson v. Berry, 8 How, 495; Bicquet v. Swan, 5 Mason, 35; Rootes v. Tompkins, 3 Grat-tan, 98; D’Arcey v. Ketchum et al., 11 How. 165 ; Boswell v. Dickerson, 4 McLain, 262; Boswell’s Less. v. Otis, Adm’r, <fcc., 9.How. 336, &c.; Bissell v. Briggs, 9 Mass. 464; Star-buck 'V. Murray, 5 Wend. 156. Nor will it suffice to say that although the judgment rendered on the order of publication may not have any extra-territorial force, yet it is competent kv operate upon and bind all property situate within its jurisdiction. — See 4 1, Art. IY., Const. U. S.; Act of Cong. May 26, -1790, ¿LiU. S. Stat. 192; D’Arcey v. Ketchum et al., 11 How. 165; Boswell’s Lessee v. Otis, Adm’r, 9 How. 336 ; Wilson et al. v. Bk. Mt. Pleasant, 6 Leigh, 570; Mills v. Duryee, 7-Oran. 483;.-Sto. Confl. L. § 547, and notes; id. § 549, and note 2; Webb v. Garner et al., 4 Mo. 12. III. That the action of plaintiff in amending- his petition, and dismissing so much of it as sought to enforce a vendor’s lien, did not and could not confer on the court any jurisdiction over the person of Janney other than what it already possessed by reason of the order of publication made in the cause — Boswell’s Lessee v. Otis, AdnTr, 9 How. 336, &c. ; ' § 12, art. 12, p. 1280, Prac. in Civ. Cas.,R. C. 1855. “The damages or other relief shall not be other or greater' than that which he shall have demanded .in the petition, as originally filed and served on defendants.” IY. Janney is not precluded by the motion filed to set aside, the judgment and quash the execution — 1 Greenl. Ev. §§ 528-30 ; Wynn v. Wyatt’s Adm’r, 11 Leigh, 584 ; Eastman v. Cooper, 15 Pick. 276 ; Starbuck v. Murray, 5 Wend. 159. A party in court for one purpose, is not there for every other purpose — Starbuck v. Murray, 5 Wend. 160 ; 9 Mo. 638 ; Lincoln v. Hilbus, 36 Mo. 149; Smith, Adm’r, v. Rollins, 25 Mo. 408.