Schmidt v. Niemeyer

100 Mo. 207

Opinion

Barclay, J.—I.

The questions involved in this appeal have been determined by former decisions of the court.

It has been held that an order of publication, regularly made, cannot be attacked collaterally, as against an innocent purchaser thereunder, by showing that it was predicated on an untrue suggestion to the court. Payne v. Lott, 90 Mo. 676. In this case the basis of the order was the sheriff ’ s return that defendants could not be found. We see no sufficient reason for disturbing the ruling made in the opinion cited.

Practical hardships frequently arise in applying the rule that parties to a cause are concluded by the returns made by law officers upon process therein, but probably greater hardships and uncertainties in the administration of justice would follow its abrogation. If a return be false, the remedy lies against the officer who made it; but parties who may have acted upon it, as in the case at bar, innocently, are protected by it.

II. The fact that the judgment was vacated by the trial court, on motion at a subsequent term, does not affect the rights of a purchaser (without notice of irregularities) at the sale under an execution on the judgment, where the latter is not wholly void. This was expressly determined in Jones v. Driskill, 94 Mo. 190, which is decisive here.

III. If, as plaintiffs contend, the tax judgment was entered for a sum in excess of that recited in the order of publication, it would not be void for that reason. Until attacked directly and vacated for such error, the judgment would be good collaterally. Allen v. Hay, 96 Mo. 542.

These are the only points made against the validity of the tax sale. The trial court appears to have made no error.

We agree to affirm its judgment, except Sherwood, J., who dissents.