Heberling v. Moudy

154 S.W. 65, 247 Mo. 535, 1912 Mo. LEXIS 69

• Court: Supreme Court of Missouri
• Decided: December 31, 1912
• Status: Published

Opinion

BLAIB, C.

This is an appeal from a judgment for plaintiffs in the circuit court of Beynolds county in an action to quiet the title to section twenty-seven, township twenty-nine north, range two east. The petition is in the usual form under section 2535, Eevised Statutes 1909. The answer admits defendant’s claim of title, avers his ownership, denies all unadmitted allegations of the petition and sets up the ten-year Statute of Limitation. Plaintiffs ’ title rests upon a tax deed recorded February 10, 1881, and defendant claims under separate tax deeds to each quarter of section twenty-seven, all executed November 25, 1896, and each of them reciting a judgment of the circuit court against Heberling and others for taxes on the quarter section conveyed and a sale under such judgment. The service in these suits was by publication, Heberling et al. being non-residents, and no objection is made to the form of the publication, except as to that in the suit affecting the southeast quarter, in which the publication ran against Iierberling instead of Heberling. Plaintiffs attacked the sufficiency of all the notices on the ground they were published in a supplement to the “Centerville Beformer” and not in the paper itself, and, also, contend the publication in the case affecting the southeast quarter was insufficient by reason of the fact Heberling’s name was misspelled therein. The testimony of the editor and publisher of the “Centerville Beformer” was to the effect that the so-called “supplement” consisted of an additional sheet or sheets folded in with the paper and sent ont with it, as a part of it, with each issue and to all subscribers. On being somewhat rigidly examined by plaintiffs’ counsel, the witness admitted he could not then (fifteen years after the event) swear a supplementary sheet or sheets went out with each copy, though he testified it was his intent and purpose to so send them, as much so as any other part of the paper. He also admitted there were occasions on which the number of “supplements” might have been a little less than that required and that on such occasions he sometimes omitted the ‘ ‘ supplements ’ ’ in copies of the paper sent to other newspapers. There was no evidence any such omissions occurred during the time the orders of publication involved in this case were running. The whole of the testimony shows that the so-called “supplement” was simply a part of the paper, an addition made necessary by the large number of orders of publication being published; that it was circulated with the paper as a part of it and went to all subscribers, except, when the number was a little short, “deadheads” or persons who received complimentary copies might not receive the supplement, and, for that matter, sometimes might fail to receive the paper at all.

I. The evidence offered to invalidate the publication was wholly insufficient. Waiving the question ^ , . _ ,,. Order of Publica-t¡on: supplement to Newspaper. as to the competency of such evidence • „ ... . to show want of jurisdiction after the circuit court in the tax suits had rendered judgment on the service thus made (1 Black on Judgments, secs. 271, 263; McClanahan v. West, 100 Mo. 309; Hamer v. Cook, 118 Mo. 476), it is apparent that, at all events, the nsnal presumption attending the judgments of a domestic court of general jurisdiction cannot he overthrown by such evidence as that adduced in this case. The authorities cited in the briefs' of counsel (which accompany this opinion) disclose that it is the general rule that publication in a supplement which is circulated fully with and as a part of a newspaper is sufficient. The burden of showing such circulation of a supplement is probably upon one who claims under a sale by a collector, auditor or county treasurer (as in some States) after a simple publication of the delinquent list and notice of sale, without, judicial proceedings of any kind, but no such rule can apply to one who claims under a sale on a judgment of a circuit court of this State. Besides, the testimony of the publisher in this ease not only fails to show any failure to circulate the supplement as fully as the rest of the paper, but shows, as nearly as testimony fifteen years after the event could well show, that the supplement was simply a part of the paper and was circulated with it as a part of it. To hold otherwise would, in effect, be to make the title to countless tracts depend solely upon the memory of publishers of papers that to each subscriber there was actually mailed a copy of the paper in which the publication appeared. The law does not require a publisher of a newspaper to issue, each week, the same number of pages, and the fact additional sheets are sent out as a part of the paper does not invalidate publications appearing in the added pages. There is no suggestion of fraud in the case and the facts render inapplicable those decisions relating to “extras” and “supplements” merely sold on the streets and not sent to the regular subscribers.

II. The names Heberling and Herberling are not idem sonans. They are not of common derivation idem'Conans. nor is there any evidence the one is a corruption of the other in general nse. While both seem to he foreign names no evidence as to their pronunciation in any language was offered and the usual rules as to English pronunciation must be applied. Numerous cases are cited in which the introduction of the letter “r” after a vowel (as in this case) has been held innocuous. Some of these cases concern, names of common derivation, some disclose one of the names considered was a corruption of the other, and in others the introduction of the “r” did not change the sound of the' vowel it followed. This case falls within none of these classes. The difference in sound is that between “he” and ‘her,” one the attentive ear finds no difficulty in recognizing. Some of the cases go far enough to support a holding that these names are idem sonans, but our own decisions (Simonson v. Dolan, 114 Mo. 176; State v. Havely, 21 Mo. 498; Miller v. Medley, 236 Mo. 694) announce the rule as stated which is generally accepted and nowhere directly controverted and the application of which must result in our holding the order of publication in the suit affecting the southeast quarter of the section to be bad and defendant’s claim to that tract, therefore, unfounded.

The judgment is affirmed as to the last mentioned tract, and, as to the remainder of the land involved, it is reversed and the cause remanded with directions to enter judgment for defendant.

PER CURIAM.

The foregoing opinion of Blair, C., is adopted as the opinion of the court. All the judges concur.