Givens v. Harlow

GRAVES, J.

This is an action in partition. James Harlow died in 1882, leaving- as his heirs Edmond J. Harlow, Wilmer G. Harlow, James Samuel Harlow and John W. Harlow, the defendants herein, .and Joseph P. Piarlow, Henry L. Harlow, and a widow, Huldah J. Harlow, who are not named as defendants. It appears that the estate of James Harlow had been previously partitioned, and in that proceeding 100 acres of land was set off to the widow as and for her homestead and dower rights, and adjoining this was also twenty acres which was used by the widow, which was likewise not partitioned. Thus there is involved in this case 120 acres of land formerly belonging to James Harlow. The widow died in July, 1908, and this suit followed in November, 1908. In the petition plaintiff claims a two-sixths interest in the whole tract of 120 acres. In other words he claimed to be the owner of the two interests which went by descent to Joseph P. Harlow and Henry L. Harlow. By the judgment plaintiff only recovered the one-sixth interest formerly belonging to Henry L. Harlow in the twenty-acre tract. This he recovered under and by virtue of a deed from Henry L., dated in October, 1908. The deed covered the entire 120 acres, but the trial court held that the interest of Henry L. had previously passed by a sher *236 iff’s deed, and that plaintiff’s deed conveyed no interest in the 100-acre part of the tract. Plaintiff now admits that he is not entitled to the interest of Joseph P. Harlow, and admits that such interest belongs to Edmond J. Harlow, as found by the decree nisi. It thus appears that the sole controversy here is as to who owns the former interest of Henry L. Harlow in the '100-acre tract first set apart to the widow. This interest was adjudged nisi to Wilmer G. Harlow, by reason of the sheriff’s deed. Counsel for the plaintiff in their statement of the case, thus describes the origin of this sheriff’s deed:

“The origin of this sheriff’s deed is as follows:

“On August 24, 1891, the firm of Gillihan & Brosius instituted suit by attachment against H. Lindsey Harlow, who was then a resident of Harvey county, Kansas, causing summons in the ordinary form, to issue to the sheriff of Harvey county, Kansas, attaching to the original summons, as well as -to the copy, a certified copy of the petition filed in the case. This petition was one in the usual and ordinary form on a note for $74, which had been given by the defendant in that suit to the plaintiffs, Gillihan & Brosius. On the same day plaintiffs filed their affidavit in attachment, alleging as the ground therein, the non-residence of defendant, also their bond in attachment, and caused to be issued to the sheriff of Daviess county, Missouri, an attachment writ, and this writ is returned by the sheriff of Daviess county, Missouri, he stating in his return that he had levied on above hundred acres of land, and filed in the recorder’s office of said county an abstract of the attachment writ, but there is nowhere in his return any statement that he has given notice to the tenants on said land, at least ten days before the return day of the writ, nor at any other time, giving the names of the tenants in his return, as then required by clause 3 of section 543, Revised Statutes 1889, and now by section 2316, Revised Statutes *237 1909, clause 3, nor as a matter of fact was anything of that kind done, nor does the record show it.

“The summons and copy of petition issued to the sheriff of Harvey county, Kansas, as we have stated, was simply an ordinary summons and the petition was the ordinary petition on a note, except that the copy attached shows petition was verified before W. H McClung, clerk, and original is not verified. There was no copy of the summons and writ of attachment, no copy of the bond and affidavit in attachment, nor any other fact therein to notify the defendant that a suit by attachment had been commenced against him and his land levied on tó satisfy the claim of plaintiffs. The sheriff of Harvey county, Kansas, in making or attempting to make, the proof of his service, has the deputy district clerk certify to the return instead of the clerk, as section 2029, Revised Statutes 1889, then .required, and as is now required by section 1778, Revised Statutes 1909. More than seventeen years after this unquestionably void service and return, the circuit court of Daviess county, Missouri, without any notice to the plaintiff in this case or the defendant- in that case, assumes the right to permit this return to be amended, orders the cause of Gillihan & Brosius v. H. Lindsey Harlow to be redocketed, states that E. E. Pollard, sheriff of Harvey county, Kansas, asks leave to file additional amended return of service, grants leave to file additional amended return of service, states that he does do so and files the same in said cause, and continues the cause to pass off the docket, and this purported amended return is now sought to be relied on in this case to cure the admitted invalidity of the former one.

“The absolute invalidity of this amended return and the order purporting to permit it, we hope to show later on in the course of the brief filed in this cause, and, at this time, simply call the attention of this court to one or two facts in connection with it. In *238 the first place, we say the court had no lawful authority to permit it and, even if such was the case, it does not comply with the terms of the invalid order permitting it. The order purports to permit E. E. Pollard, sheriff of Harvey county, Kansas, to file, etc., and further on states that E. E. Pollard, sheriff, amends, etc., when the amended return itself on its face states that E. E. Pollard, a person who ‘was the sheriff on August-28, 1891, of the county of Harvey,’ etc., makes the statement in what purports to be an affidavit before O. L. Hand, clerk of the district court of Harvey county, Kansas. Of course as we have said, there are other and manifest faults that will be pointed out in the brief proper, that absolutely preclude the idea of its possessing any validity, such, for instance that the certificate required by law must state that the officer serving the writ, that the judge or clerk who signs the affidavit and certificate, is the judge or clerk,. as the case may be, of the court of which ‘affiant is an officer, ’ while this affidavit and certificate states that affiant was an officer of the court of which the said O. L. Hand at the time is an officer.”

The whole case turns upon the validity or invalidity of this judgment in the attachment suit. This sufficiently states the case.

I. There are several questions presented by the record in the attachment preceding. These we will discuss in order, but in this connection the recitals of the judgment in that case become material. This judgment reads:

“Now on this day come the plaintiffs in their own proper persons, and the defendant though duly summoned on the 28th day of August, 1891, by the sheriff of Harvey county, Kansas, which return is in words and figures as follows, to-wit': ‘I-hereby certify that I executed the within writ in the county of Harvey and State of Kansas on the 28th day of August, 1891, *239 by delivering into the bands of the within named defendant, H. Lindsey Iiarlow, a copy of the within petition and writ. E. E. Pollard, sheriff of Harvey county, Kansas. I, E. E. Pollard, being duly sworn, upon oath state that the above return made by me is true and that I am duly authorized to serve process as such. E. E. Pollard, sheriff of Harvey county, Kansas. Sworn to and subscribed before me, clerk of the district court of which the said E. E. Pollard is sheriff, and I further certify that said E. E. Pollard is sheriff of Harvey county, Kansas, and that he has the right to serve process in said Harvey county, Kansas. Witness my hand and official seal. Done at my office, this 29th day of August, 1891. Josiah Foltz, clerk district court. (Seal.) By Gr. W. Butt, deputy clerk. Sheriff’s fee serving summons first person 50c, copy 25c, mileage 50, $5; total $6. E. E. Pollard, sheriff Harvey county, Kansas, Newton, Harvey county, Kansas.,’ which return is in conformity with statute and as the law directs, but said defendant fails and neglects to appear and answer to this action, but makes default herein so that plaintiffs’ cause of action remains unanswered and undefended, and said cause being submitted to the court, the court finds that plaintiff’s cause of action is founded upon a promissory note for the direct payment of money, the amount of which is liquidated and certain, it is therefore ordered and adjudged by the court that the plaintiffs recover from defendant the sum of seventy-three dollars and eighty cents, being the amount of said note and interest to this date, with ten per cent interest thereon from date, together with costs of suit and that execution issue therefor, that the attachment be in all things sustained. ’ ’

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Service"611*

*239 That the trial court acquired no jurisdiction in the attachment suit by reason of this service in Kansas, as set out in the judgment above, is made clear *240 by tbe very recent ease of Priest v. Capitain, 236 Mo. l. 456, et seq. The Proof of service here involved is practically identical with the proof of service involved in the Priest case, supra. Nor did the circuit court have any authority to permit the amendment of the proof of service as was attempted in this case. Its act in so-doing is and was a nullity. We so ruled in the Priest case, supra. [Vide, 236 Mo. 1 . c. 458.] It must be held, therefore, that if this Kansas service, and the subsequent action of the circuit court permitting an amended proof of that service, are the only things which authorized the circuit court to proceed in the attachment suit, then the court was proceeding without jurisdiction. Such rule we clearly announced in the Priest case, supra, which case had our best efforts in outlining the statutory and case law upon the question involved, and should be read in connection with this opinion.

Attachment: Judgment. II. It is urged that the judgment in the attachment suit is being collaterally attacked, and that it is good as against such an attack, although it might be subject to a successful attack in a direct proceeding. It must be conceded that this is a collateral rather than a direct attack upon this judgment. For that reason we have set out the judgment in full. This, to the end that we might determine whether it be a void or a mere voidable judgment. This judgment upon its face is a general judgment to our minds. It was-so considered by the court which rendered it and by the parties to that suit, because upon it was issued a general execution rather than the special execution which should have been issued in an attachment proceeding, where there was no personal service upon the defendant. The land was sold under this general execution, and the sheriff’s deed, under which Wilmer G. *241 Harlow claims, is one made after a sale under this general execution. If, as we have concluded, this is a general judgment, then it is void upon its face, because under such constructive service, even had proof of service been good, there is no authority in law for the rendition of a general judgment. This judgment upon its face carries the evidence of its own invalidity as a general judgment. It shows that it was rendered upon constructive service rather than upon personal service. Service of a summons issued by a court of this State in a sister State is at most but constructive service, and does not authorize a general judgment. This we expessly ruled in the case of Moss v. Fitch, 212 Mo. 484 , after a thorough review of our case law. That the judgment before us is a general judgment and one against the person rather than the attached property is clear. Note the language: “It is therefore ordered and adjudged by the court that the plaintiff recover from the defendant the sum of seventy-three dollars and eighty cents, being the amount of said note and interest to this date, with ten per cent thereof from this date, together with costs of suit, and that execution issue therefor.” It will thus be seen that there is no special judgment against the land claimed to have been attached, and no special execution ordered, but on the contrary the judgment is against the person, and a general execution directed, which was issued. It is evident that the trial court in the attachment proceeded upon the theory that a general judgment could be entered under the Kansas service. The statute, section 2029, Revised Statutes 1889, then in force, seemingly authorized a general judgment upon such service, and the trial court was evidently so impressed. But of that portion of the statute, in Priest v. Capitain, 236 Mo. 1 . c. 457, we thus spoke:

‘ ‘ The latter clause of the section has been held to be violative of constitutional rights, if construed to *242 mean that a personal judgment could be entered upon ■such service. [Moss v. Fitch, 212 Mo. 484 , and cases therein reviewed.]”

In Moss v. Fitch, 212 Mo. 1 . c. 502, we had a personal judgment upon service of this kind. It was a collateral attack upon that judgment, but we said:

“Prom this it follows that plaintiff’s judgment for ■alimony and all proceedings thereafter as to the execution and sale were absolutely void and she acquired no title to the land by reason thereof.”

In such case the judgment is void and not merely voidable. A void judgment is subject to attack in a collateral proceeding and has always been so held. The absence of jurisdiction of the trial court in that case appeared upon the very face of the judgment itself and was reflected to the world by the very language of the recitations in that judgment. These recitations as to the service made the judgment void and not voidable. A sale under such judgment was void, as well as the deed made in pursuance of such sale.

Attachment: General Judgment: Irregular. III. It is urged under the authority of Burnett v. McCluey, 92 Mo. 230 , that because only the land .attached was sold, a general judgment was not necessarily void, but only irregular. There is some language in that case lending support to these views, but when the facts are considered the case is not applicable here. In that case there was a valid service by piiblication, whilst in this case there is no valid substituted service, by which the defendant was notified. Presumably in that case, the judgment recited clue service upon defendant by publication, but in this ■case the proof of service and the service itself is set ■out in the judgment and bespeaks the absence of due ■service upon defendant. But after all, the case law of this State does not allow a general and personal, judgment upon any substituted service. [Moss v. Fitch, supra, and cases reviewed therein.]

*243

Attachment: No service. IV. Next it is urged that inasmuch as the attachment writ was levied upon the land, and an abstract thereof filed in the recorder’s office, therefore the court was possessed of the res, and the judgment is therefore not void. This contention cannot stand. The res must be attached and properly attached, but this is not all. Section 2316, Revised statutes Í909, which has been the law for years, says: “The writ and petition shall be served upon the defendant as an ordinary summons.” The property must be attached, and the defendant notified, is the meaning of this language. If the writ of attachment, which contains a summons, cannot be served personally upon the defendant, then one form of substituted service must be had, i. e., a publication or service personally upon the defendant in a sister State, as was attempted here. The law requires both of these steps to be taken before the court can proceed to render a judgment in an attachment proceeding. In the case at bar it appears that the first step was properly taken, but it also appears from the very judgment itself that there was no valid evidence of the second step having been taken. So that under any theory of the case the judgment in the attachment proceeding was void upon its face, and could be attacked in a collateral proceeding.

From this it follows that the judgment in this case must be reversed, and the cause remanded.with directions to enter judgment for the plaintiff as herein indicated.

All concur.