Graves v. Smith , 278 Mo. 592 ( 1919 )

BOND, C. J.

Suit of the purchaser under an execution sale to set aside an alleged fraudulent conveyance of the judgment deht-or.

In 1910 defendant John W. Smith (J. "W. Smith) purchased a farm in Newton County, Missouri, and placed his father in possession thereof as teiiant, care for the property being the consideration for its use. In June, 1913, John W. Smith mortgaged this land by two deeds of trust, one for $650 with interest, payable five years from date; the second for $65 with interest, payable to George B. Hulse, maturing at a like date, naming Horace Ruark as trustee, and containing power of sale for foreclosure by the trustee on default of payment.

, Defendant Smith, having become indebted to George Graves as guarantor of a theatre lease, and having refused to pay said debt, said Graves, on January 21, 1914, sued out a writ of attachment, directed against J. W. Smith and his property.-

On January 24, 1914, John W. Smith executed a mortgage and deed of trust on the land in controversy to secure a debt to one G. S. Rowe of $1425, Lee Rowe being named as trustee therein. On January 25th, said mortgage and deed' of trust were filed for record at Neosho, Missouri.

About this time Horace Ruark, attorney for John W. Smith, informed the sheriff that John W. Smith was not a resident of Missouri, but of Texas, and the sheriff thereupon amended a former return of personal service ai the home of said Smith as follows:

I hereby certify that I executed the -within writ in the County oi Newton and State of Missouri, by making diligent search for the within named J. W. Smith and failing to find him in my county, I therefore return this writ not served, this 16th day of April, 1914.

Thereupon the clerk of said court, in vacation, mad° an order of publication, which was duly publisfipd, notifying Smith of “a suit on account of rent due under a lease covering a certain theatre building” having been brought against him.

Ordinary summons was also issued, directed to the sheriff of Wichita County, Texas, whose affidavit, among other things, recites:

Personal Service on Non-Resident.

State of Texas, County of Wichita: ss.

In the Circuit Court. Geo. A. Graves et al., Plaintiffs, against J. W. Smith, Defendant.

Being first duly sworn with reference to the above entitled action, the undersigned R. L. Randolph, in his hereinafter named official capacity says that ... he did for the plaintiff, duly and personally serve on J. W. Smith, as defendant in the above entitled cause, who then resided in said Wichita Falls, County of Wichita, a duly certified copy of the petition in said cause, together with a copy of the original writ of summons therein, by delivering to each of the said last above named defendant in person, at said Wichita Falls, County of Wichita, on said day, true duplicate copies of the following instruments, viz.: (1) the hereto attached copy of said petition and (2) the plaintiff’s affidavit showing said defendant to be resident as aforesaid and non-resident of the State of Missouri, and (3) the hereto attached original writ as a writ of summons, and (4) the hereto attached certificate and attestation verifying each and all of the aforesaid copies . . .

R. Ai. Randolph,

Sheriff of Wichita County, State of Texas.

The judgment which was rendered in the attachment suit concluded as follows: *

“ Wherefore it is considered and adjudged by the court that the plaintiff recover of the defendant the sum of twelve hundred and fifty dollars and the costs in this behalf expended, and have execution against the property and effects attached in this suit.” ,

Execution issued, under which the sheriff sold the defendant’s property in controversy for $100 to George A. Graves, the plaintiff in this' suit .

Default was made in the payment of interest on the $65 mortgage, payable to George Hulse, and after due publication of notice of foreclosure, on May 11, 1914, the trustee therein conveyed the land to Mae Smith, sister of John'Smith, for $80. Both are defendants in this suit.

Prom a judgment rendered in favor of plaintiff in the present action, defendants J. W. Smith and Mae Smith appealed.

Service?ted I. The decisive question in this case is whether or not the judgment rendered in the attachment suit, under which the land in controversy was sold to plaintiff, was void on its face and hence open to that defense in the present action.

In order to acquire jurisdiction and validate a personal judgment rendered in its exercise, the court must have the subject-matter of the suit within its judicial cognizance and the defendant before it by due service of summons or by his voluntary appearance. These data are indispensable to the rendition of a general judgment against the defendant for money or property. On the other hand, when no personal or general judgment is sought or can be obtained and the suit is brought only to charge or fix a lien upon lands of a non-resident defendant, the statute provides a method of subjecting the res by attachment of his property and notice to him by publication in a prescribed form, or by substituted service. Unless both of these statutory prerequisites are complied with, the local court acquires no jurisdiction to proceed and any judgment rendered by it, special or general, is an absolute nullity and open to collateral attack in any other court where rights thereunder are attempted to be enforced. The reason is that the statute in such cases gives the couxt no power to act unless the property is seized by a writ of attachment and the non-resident owner is apprised of that fact by the publication of a notice in the .form prescribed in the statute or the substitute personal service permitted by the statute. [R. S. 1909, secs. 1770, 1778; Moss v. Pitch, 212 Mo. l. c. 497; Givens v. Harlow, 251 Mo. l. c. 243.]

The crux of this case, under the facts shown in the record, is whether or not the suit in attachment against J W. Smith was conducted in compliance with the statute in the matter of notice by publication or service of substituted process on him in Wichita County, Texas. The learned trial court held these notifications to be sufficient to warrant a1 judgment of $1250 against the defendant in that case and for an award of execution therefor against the property attached in that cause (as appears from the copy set out above.)

We cannot assent to that view. The order of publication supra simply recited the commencement of the suit “on account of rent due under a lease covering a theatre building” and warned the non-resident to appear and defend.

The statute requires in attachment suits that the order of publication shall state “briefly the object and general nature of the petition.” [R. S. 1909, see. 1770.] The substituted foreign service permitted in another section (Sec. 1778) is only a statutory alternative for notice by publication and has been held to have “no broader scope” and that it was intended to inform the non-resident that the court “had reized the res” and would proceed to adjudge the rights of the parties “in and to the res.” [Moss v. Fitch, 212 Mo. l. c. 497, 498.] It necessarily follows that the notice of substituted service should be substantially the same as that required by the statute for publication.

No hint was given to defendant in this case, -either by publication or in extra-territorial personal service, that his property had been attached or impounded in any way. The action in which the judgment sued on was rendered was one begun by attachment of the property of a non-resident. The writ of attachment issuable in that case should have contained, in addition to a command to levy upon the lands or so much thereof as would satisfy the verified claim of the plaintiff, a further order of summons to be served upon the defendant requiring him to appeár and answer the action of plaintiff. [R. S. 1909, sec. 2313.]

Obviously no notice by publication could have been given to- the defendant in that action which would have complied with the letter and spirit of the statute'requiring such notice to state “the object and general nature of the petition” or suit which did not distinctly inform him that it was one by attachment of his property. The sole ground upon which any recovery could have been had in the original suit was the right to seize the property of defendant and subject it to the satisfaction of the verified demand of plaintiff under the authority given by the statute applicable to attachment and other suits against non-residents. Plaintiff could have had no other action upon, a breach of contract or guaranty wherein he could have recovered a personal judgment against the non-resident defendant by any form of publication or personal service. The only possible redress which plaintiff could have had was against specific property in this State as provided by statute. It is, therefore, clear to a demonstration that the action begun against the nonresident defendant could not have been one to recover a certain sum for the breach of a guaranty (as stated in the order of publication), for the court was powerless to render any such redress. Hence the notice which apprised defendant that such was the nature of the action against him, was a misleading statement and did not correctly describe the “object and general nature” of the suit, which was to impound ■certain property and apply the proceeds of a sale thereof to the claim of plaintiff against defendant. It ’necessarily follows that the only way the plaintiff in the attachment suit could have complied with the statutory direction as to notice, was to have inserted in the order of publication a statement setting forth the real nature of his suit: i. e. to subject by attachment the lands of a non-resident debtor to the payment of a verified demand; and it is an obvious corollary of this that he could not have complied with the requirement of the statute, if he adopted substituted service instead of publication, unless he had provided for a similar notice of the nature of the suit, either by employing the form' of original writ of attachment prescribed by statute (R. S. 1909, sec. 2311), or in some other way have notified the defendant that the foreign personal service on him was to defend an attachment suit.

We hold that both the order of publication in this case and the attempted substituted service were fatally defective under the statutes authorizing them and could give the court no jurisdiction to render the judgment in the attachment suit. It follows that the sale to plaintiff under a void judgment vested him with no title to the property in dispute.

General Judgment, II. This conclusion renders it unnecessary to discuss other grounds of objection to the judgment of the trial court, including the contention that the judgment rendered in the attachment suit was a general judgment. [Priest v. Capitain, 236 Mo. l. c. 457; Givens v. Harlow, 251 Mo. 231.]

The judgment of the trial court in this case was erroneous. It is, therefore, reversed and the cause remanded with directions to dismiss plaintiff’s suit. It is so ordered.

All concur except Woodson, Jnot sitting.