Laney v. Garbee

1. Summons : void service : judgment. Under Revised Statutes, 1879, section 3489, which provides for service of the petition and writ by leaving copies “at the usual place of abode” of defendant “ with some person of his family over fifteen years old,” a return showing merely that the sheriff delivered such copies “ to a member of defendant's family over fifteen years old” is insufficient, and a judgment rendered thereon by default is void. 2. --: RETURN : judgment : RECITALS. A recital in the judgment that the defendant was duly served with summons may be contradicted in a collateral proceeding by showing from the return itself that legal service was not made.

Appeal from Christian Circuit Court. — Hon. W. H. Hubbard, Judge. (1) All that a stranger to a judgment is required to look to is the judgment, execution and sheriff’s deed, and, if they appear to be regular upon their face, he will be protected; for the policy of the law is opposed to setting aside judicial sales, and at a tax sale this rule applies. State ex rel. v. Sargent, 12 Mo. App. 228-238. (2) When property is sold and conveyed for the satisfaction of any judgment regularly made, and is bought by a stranger to it, or is in the hands of an innocent third party as in this case, the setting aside of the judgment, under which such sale and conveyance is made, does not affect the title or rights acquired under it while in force. And a fair construction of section 3691, Revised Statutes, 1879, means when the judgment appears to be regular on its face independent of the other files in the case. R. S. 1879, sec. 3691; Freeman on Judgments [3 Ed.] sec. 509, p. 509 ; Jones v. Drisldll, 94 Mo. 200. (3) The judgment recites that Laney was duly served by process of summons, and it imports absolute verity, and we ■conclude he had notice. Rumfelt v. O’Brien, 57 Mo. ■ 569. The law presumes that a judgment speaks the truth as to service, and the manner of service, and that the evidence of such service was before the court at the time the judgment was rendered, and, if this presumption is true, then some officer has set in motion the machinery of the law by which plaintiff has lost his land, and in this case his remedy is against such officer for damages. State ex rel. v. Finn, 11 Mo. App. 400.' (1) John Laney was not summoned or notified m the back-tax suit, and for this reason the judgment and sale for taxes to W. R. Jones, under whom defendants .and appellants claim title, was a nullity, and Jones obtained no title thereunder, and hence could convey none to said Wilkinson. Such a judgment is, of course, open to collateral attack. Janney v. Spedden, 38 Mo. 397. (2) If the judgment, taken as a whole, shows that the court had no jurisdiction, then the judgment is a nullity. Howard ®. Thornton, 50 Mo. 291; Milner ». Shipley, 94 Mo. 108; Brown v. Woody, 64 Mo. 550; Adams v. Oowles, 95 Mo. 501. (3) “Although the record contains the jurisdictional recital, that * defendants have been duly served with process,’ it is competent to overthrow such recital by showing, by other parts of the record of equal dignity and imparting equal verity, that such recital is untrue. And the return of the sheriff is a part of the record itself, and may, when radically defective, be used to rebut the presumption arising from recitals of service contained in other portions of the record.” Cloud v. Inhabitants, 86 Mo. 358; McClanahan ®. West, 100 Mo. 321. (4) “Gen-ally the recital of jurisdiction contained in the record, or of the service of process contained in the judgment, will be construed in connection with the whole record, and will be deemed to refer to the kind of service shown by the other parts of the record.” Cloud ®. Inhabitants, 86 Mo. 358; Crow v. Meyersieelc, 88 Mo. 414. (5) “If the notice attempted to be given, as the same appears by the records, is fatally defective, there is under the authorities no presumption of notice in any other mode or manner.” Crow v. Meyersieelc, 88 Mo. 415; Blodgett v. Schaffer, 94 Mo. 669. (6) The tax judgment was set aside, upon due notice to the Garbees, P. E. Sweeney and Jones, as void, and hence the tax deed had nothing to support it. Bumfelt ®. O'Brien, 57 Mo. 572, was a case in which the defendant Rumfelt appears to have been really served by publication, and in which the judgment recital was that he was duly served with process. The record or roll appears to have been offered in evidence in fragments upon the trial, and this court, in rendering an opinion in the same, pertinently and distinctly stated that nothing here to show that the several fragments exhibited in evidence, constituted the whole record of the Union Bank case.” This latter case is explained in Cloud v. Inhabitants of Pierce City, 86 Mo. 369. The sections referred to in Freeman on Judgments, by appellants, are simply general discussions of' the subject of “jurisdictional inquiries,” and can give this court no aid in determining this appeal. The Missouri law is so clear, and the former opinions of this court so decisive of the questions here involved, that it is not necessary that we go to text-books or the law of foreign courts for light. There is no error in the record, and the respondent asks that the judgment be affirmed.