Milner v. Shipley

94 Mo. 106

• Court: Supreme Court of Missouri
• Decided: October 15, 1887
• Status: Published

Opinion

Black, J.

This is an action of ejectment for the south half of lot 5, in Kimbrough’s second addition to the city of Springfield. Plaintiff, for a link in his title, depends upon a, sheriff’s deed, based upon a judgment of the circuit court in a suit of the state at the relation of the collector against M. E. and A. M. Palmer for the enforcement of the state’s lien for taxes for the years 1869 and 1877. There are two additions to the city of Springfield, one known and designated on the plat as Kimbrough’s addition, and the other known and designated as Kimbrough’s second addition. There is a lot 5 in each of these additions. The petition in the tax suit describes the property as the south half of lot 5, in Kimbrough’s addition, and the defendants are alleged to be the owners thereof. There was no personal service. The defendants did not appear to the suit. The order of publication and the notice published pursuant thereto in the newspaper follow the petition in the description of the property, but the judgment and sheriff’s deed describe the 'property as in the second addition.

There can be no personal judgment in these tax suits, even where there is personal service. The effect of a valid judgment and sale thereunder is to transfer to-the purchaser the title and interest of the defendants to the suit. It is their interest only which is conveyed. The court acquires jurisdiction- of the property and of the defendants, by the filing of the petition and publication of the notice ordered to be madé. It follows, as a corollary, that it is the property, and that only, described in the petition and order of publication, of which the court gets jurisdiction. The court might as well hav,e pronounced judgment against any other lot in Springfield as against this one in the second addition.

It is said the court erred in allowing the judgment to be impeached by the files of the court. The judgment recites that the defendants had been “ duly notified by publication,” etc. This recital is doubtless conclusive, in a collateral proceeding like this, that the order made by the clerk in vacation had been duly published according to the command of the order. But the petition and order of publication are as much a part of the record proper — the judgment roll — as the judgment itself. If there is any conflict between the recitals in the judgment, as to the terms of the order, and the order itself, the latter must control, for a recital of the order must yield to the order itself. Crow v. Meyersieck, 88 Mo. 411. A judgment which is erroneous, or irregular, or both, cannot be impeached collaterally. Rosenheim v. Hartsock, 90 Mo. 365; Burnett v. McCluey, 92 Mo. 230. But here the court had no jurisdiction to render a judgment against property, different from that .described in the petition' and order of publication. The judgment is, therefore, void, and open to collateral attacks. Janney v. Spedden, 38 Mo. 397.

The judgment is affirmed.

.Ray, J.,. absent. The' other judges concur.