State ex rel. Smith v. Clarkson

1. Back-Tax Suit: ORDER OP PUBLICATION: MOTION IN NATURE OP WRIT OP ERROR OORAM NOBIS: JUDGMENT. That a writ of error coram nobis will lie when the court has committed an error of fact vital to its jurisdiction, when such error does not appear upon the face of the proceeding, is well-settled law. 2. -: -: ORDER OP PUBLICATION: JUDGMENT. The allegation of non-residence in a back-tax petition made it the duty of the clerk to make an order of publication in vacation (section 9303 of Revenue Law and section 575 of the Code, R. S. 1899), which, when published and publication proved, was as affeetual service as if the defendant had have been personally served by a summons, and a final judgment rendered upon such service is just as conclusive as a judgment rendered upon the personal service of summons. 3. -:-: JUDGMENT AGAINST RES: JURISDICTION OP SUBJECT-MATTER. Jurisdiction was required of the res by the making, publishing and proof of the order of publication, and it was against the res, only, that the judgment was rendered, and for this purpose jurisdiction was as effectually conferred as if defendant had been personally served with process. 4. -: -: RESIDENT OP STATE: NO ERROR OP PACT IN RENDERING JUDGMENT. The proof that the defendant was a resident of the State did not prove, nor tend to prove, that the court committed an error of fact in the rendition of the judgment, fatal to its validity. 5. -: --: APPELLANT’S REMEDY. Appellant yet has his remedy to set aside the judgment by default against him, under the provision of section 777, Revised Statutes 1899; and the collector, on his bond, if he willfully and knowingly made a false statement in his petition for the purpose of procuring the order of publication, would be liable.

Appeal from Howell Circuit Court. — Hon. William, N. Evans, Judge. STATEMENT OF THE CASE. This is a proceeding by motion, in the nature of a writ of coram nobis, to set aside a judgment by default rendered in the circuit court enforcing the lien of the State for back taxes upon real estate, and incidently to render nugatory _ a sheriffs deed made on a sale of the real estate on execution issued on the judgment. The allegations of the motion and the proof is that Clarkson, the mover and defendant in the judgment, was before, and at the time the tax suit was commenced, and yet is a resident of Randolph county, Missouri, that his deed to the lands', on record in the recorder’s office of Howell county, described him as a resident of Randolph county, Missouri, that he was not served with summons, did not appear, nor did any one appear for him to the suit and that he was wholly ignorant of the pendency of the suit or of the rendition of the judgment, or of the sale of his lands until a few days before the filing of his motion. The petition in the tax suit alleged that Clarkson was a non-resident of the State. On this allegation the clerk of the Howell Circuit Court made an order of publication, which was sufficient in form and substance and which was duly published and proved as the law directs. The evidence of Preston and of his attorney who bid in the lands for him at the sheriffs sale is, that neither of them knew Clarkson or knew his place of residence and that neither of them had seen the record of his deed at or before the sale, and bid on the land in good faith relying on the judgment and execution. After hearing the evidence the court overruled the motion. Plaintiff duly appealed. (1) Cases of this nature are numerous in this State, and all hold without dissension that this proceeding, in the nature of a writ of error córam nobis, is the proper remedy to reach the grounds of complaint in the case at bar. This proceeding was always brought into .requisition to correct some error of fact which did not appear of record, and which was unknown to the court. It is the only remedy in this case, because the facts going to the jurisdiction of the court can not be reached in any other way. The record showing jurisdiction, it can not be assailed in a collateral proceeding. We cite only cases directly in point. State y. Heinrich, 14 Mo. App. 146; State y. Horine et al., 63 Mo. App. 1; State v. White, 75 Mo. App. 257; Neenan y. St. Joseph, 126 Mo. 89. (2) No statute of limitation bars this proceeding. It may be instituted at any time. Latshaw v. McNees, 50 Mo. 381; Powell v. Gott, 13 Mo. 459. Office and purpose of the proceeding discussed. Dugan y. Scott, 37 Mo. App. 663. (3) Distinction between the statutory motion to set aside judgments for irregularities and motion in the nature of a writ of error coram nobis clearly stated. Hirsh v. Weisberger, 54 Mo. App. 506. (4) The usual way of bringing this matter before the court is by motion supported by affidavit or by evidence. The motion at bar was supported by affidavit and evidence. Neenan v. St. Joseph, 126 Mo. 89, supra; Ex parte Gray, 77 Mo. 161. The uncontradicted affidavit of appellant supported by his deed was all the proof necessary. Latshaw v. McNees, 50 Mo. 381; Randolph v. Sloan, 58 Mo. 155. The evidence is all on the side of the appellant. It is not disputed that he was a resident of the State and the court committed error in not sustaining the motion on the facts. Oraig v. Sloan, 65 Mo. 356; State v. Heinrich, 14 Mo. App. 146. (5) This proceeding is not defeated or impaired by reason of tbe land having been sold and purchased. If the purchaser is given notice of the motion, his rights are adjudicated, and the sale, as well as the judgment, should be set aside. In this case the purchaser, Preston, was duly notified and appeared and defended. In the cases of State v. Heinrich, State v. Ilorine, and State v. White, supra, as in this, the land had been sold. If, however, the purchaser is not notified of the motion, his title is not affected by the order setting aside the judgment. Schiffman v. Schmidt, 154 Mo, 204; Tones v. Driskill, 94 Mo. 190; Schmidt v. Niemeyer, 100 Mo. 207. (6) Under our system of practice, and especially the practice in acquiring jurisdiction over defendants in tax suits, makes the proceeding in the nature of a writ of error comm nobis all important. It is always sustained by our courts.. As it has been held by the Supreme Court of the State, that the question here raised can not be raised in collateral proceeding (Payne v. Lott, 90 Mo. 676, and Schmidt v. Neimeyer, 100 Mo. 207), then this is the only remedy left to a citizen of the State who has been sued, judgment rendered, and his property sold, without any notice or knowledge on his part. If this remedy were not afforded appellant, then his property has certainly been taken without due process of law. State v. Heinrich, supra. (1) The petition filed by the collector is in the usual form, and states in it that defendant Clarkson was, at the institution of the suit, a non-resident of the State of Missouri, so that the ordinary process of law could not be served upon him. Whereupon, the clerk of the circuit court issued an order of publication, which is provided that he shall do, in Revised Statutes 1899, section 575. (2) The-learned counsel for appellant has filed a very exhaustive brief and argument to convince the court that a writ of error coram nobis is the proper remedy. We make no issue on that where there is error committed which is not apparent from the face of the records. The question in this case is, did the court have jurisdiction ? If so, the judgment is good and binding, and Rreston takes title to the land. (3) In an action for back taxes the allegation contained in the petition, that the delinquent landowner is a non-resident of the State, authorizes the clerk to issue an order of publication, and when issued, published and provea (as in the case at the bar), the court has jurisdiction to proceed to judgment in the ease, and the sale made under it is valid and binding as to the defendant and his grantees, where the purchaser at the sale had no notice of the fact that the defendant was a resident of the State. Payne v. Lott, 90 Mo. 676. (4) The above case is affirmed and held that the remedy is against the officer. Schmidt v. Niemeyer, 100 Mo. 209. (5) In this case, if the collector made a false statement in his petition, he is liable on his official bond. Tooker v. Leake, Í46 Mo. 433.