Shemwell v. Betts

174 S.W. 390, 264 Mo. 268, 1915 Mo. LEXIS 65

• Court: Supreme Court of Missouri
• Decided: March 2, 1915
• Status: Published

Opinions

OPINION.

BOND, J.

Judgment by Default: Notice by .Publication.

(After stating the facts as above.) — The allegations of the petition in’this case disclose that the circuit court of Oregon county obtained jurisdiction in the former action brought against plaintiff to quiet the title to the land by publication prescribed by statute in suits against non-residents. [R. S. 1909, sec. 1707.] In cases falling within the purview of that statute, and where it is strictly complied with, a court of general jurisdiction in the classes of cases mentioned in the statute obtains as much jurisdiction over the persons of non-residents upon a publication regularly made as if they were personally served with process. This has been too long the settled rule in this State to be further questioned. Under the statements contained in the petition in this case, the suit in which plaintiff was served by publication was one which fell within the class specified in the statute which, among others, embraces, to-wit:

“And in all actions at law or in equity, which have for their immediate object the enforcement or establishment of any lawful right, claim or demand to or against any real or personal property within the jurisdiction of the court.”

An action to quiet title undoubtedly is comprehended within the above quoted terms. The circuit court therefore in the suit brought by Brooks had jurisdiction of the subject-matter and of the person of .the present plaintiff, the defendant there, in the mode provided by statute for obtaining jurisdiction against non-resident defendants. This being so, its judgment in that action is unassailable by a bill in equity except for fraud in the very procurement of the judgment itself. None of the allegations in plaintiff’s petition in the present case disclose that the judgment in the former suit was fraudulently concocted. The allegations in the present action tend to show many grounds upon which plaintiff might have defended the former, but it has been uniformly held that the judgment of a court of competent jurisdiction having the jurisdiction of the cause and the parties, cannot be upset by a subsequent suit in equity on any ground which might have been interposed as a defense to the former action, unless the party entitled to such defense has been prevented from making use of it by the fraud of his adversary, unmixed with any negligence on his part. This principle has been recently reaffirmed in a case containing a full citation of the authorities in this State. [McDonald v. McDaniel, 242 Mo. l. c. 176, and cases cited.]

Our conclusion is that there was no error in the ruling of the learned trial court in sustaining the demurrer to plaintiff’s petition. The judgment herein is- affirmed.

All concur, Woodson, Jin a separate opinion.