author: FOX, J.

text:
    R. B. ROBINSON, Appellant, v. MAX LEVY.
    Division Two,
    March 9, 1909.
    1. JURISDICTION: Special Taxbills: Amount Less Than $250. The circuit court and the justice of the peace have concurrent jurisdiction of a suit on two special taxbills where the amount due on both is $71.52. Because the amount sued for is less than $250, it does not follow that, under Sec. 1674, R. S. 1899, the justice of the peace had exclusive jurisdiction.
    2. PLEADING: Exhibit: Spécial Taxbill. An exhibit is no part of the petition, even though it is attached to and made a part thereof.
    3. SPECIAL TAXBILL: Not Filed With Petition: Day in Court. If the petition otherwise states a cause of action on a special taxbill, it does not fail to do so because the taxbill was not filed with the petition. And if the statute does require the taxbill to be filed with the petition, failure to file it does not, in a collateral case, render the judgment invalid. The time to have interposed that failure as a defense was in that suit, and if it was not then made it cannot be afterwards made.
    4. -: Not Signed by Mayor: Jurisdiction. The place to have shown that the special taxbills were required by law to be signed by the mayor and attested by the clerk and that they were not so signed, was in the suit on the taxbills. It cannot be shown in a suit to quiet title where defendant claims title under a judgment rendered in the special tax suit and the sale of the property under execution issued thereunder. Where the petition in the tax suit alleged that the city caused its certain taxbills to be issued against the property, etc., the allegation is to be treated, at least by implication, as an averment that the city caused legal taxbills to be issued; and if they were illegally issued, or were defective in substance or form, that was a matter of defense in that suit, and as the circuit court had jurisdiction over the subject-matter, if that defense was not made in that suit, it cannot be made by collateral attack in another suit against the purchaser at the tax sale.
    5. -: Expired. If the taxbills were invalid, or if they had expired as a lien, that was a defense which could have been made in the suit on the taxbills, and cannot be made in a collateral proceeding.
    6. -: No Allegation of Non-Payment. Even if the allegation in the petition that '‘the said taxbill, nor any part thereof, has been paid” was not an averment that the taxbills had not been paid when suit thereon was brought, the petition for that defect was subject to demurrer, and under the Statute of Jeofails, after verdict and judgment, that defective averment does not make the judgment void, even if an allegation that the taxbills had not been paid were a necessary averment. Defective averments which do not go to the extent of failure to state a cause of action are not available in a collateral attack on the judgment.
    7. -: Sheriff's Deed: Publication of Sale. A recital in the sheriff’s deed that he 'gave “at least twenty days notice of the time, terms and place of sale, together with a description of the real estate to be sold, and where situate, as the law directs, by publishing said notice in the Kansas City Mail, a newspaper printed and published regularly in Kansas City, Jackson county, Missouri,” is a substantial compliance with the statutory requirement as-to publication of notice of sale. The deed is not invalid because it does not say whether the newspaper was a weekly or daily, or a weekly and a daily.
    8. -: -: Different Name of Sheriff. Where in one portion of the sheriff’s deed Robert S. Stone is designated as the sheriff and in another John P. O’Neill is so designated, and it is apparent that the substitution of Stone’s name for O’Neill’s was a mere clerical error, the deed will not be held invalid.
    9. -: Personal Judgment. Although the judgment may recite that the defendant Augustus Smith is indebted to plaintiff in the sum of $60.60, yet if following this recital reference is made to the special taxbill made the basis of the suit by the

      ' petition, and it then recites that said taxbill and the amount due thereon are a lien upon the property in the taxbill described, which real estate is owned and claimed by defendant, the judgment-is not a personal one against Augustus Smith.
    10. -: Against Homestead. A homestead is not exempt from execution and sale under a judgment on a special benefit assessment which enforces the amount thereof as a special lien against the homestead.
    Appeal from Jackson Circuit Court. — Root. John G. Park, Judge.
    Affirmed.

      J. B. Hamner and W. W. Calvin for appellant.
    (1) An exhibit is no part of a petition, even though it is attached to and the petition states that it is made a part thereof. Vaughan v. Daniels, 98 Mo. 280; Moore v. Dixon, 50 Mo. 424; Poulson v. Collier, 18 Mo. App. 538. (2) Where the statute creates a new right, such as making taxhills a lien (such lien not existing at common law, and would not exist at all were it not for the statute), then that lien exists only for the time prescribed by statute, and after the Statute of Limitation has run the statute need not be pleaded at the trial of the case nor at any other time. State v. Crutcher, 2 Swan (Term.) 504; Firnell v. Railroad, 33 Fed. 427; Boyd v. Clark, 8 Fed. 849 ; Morgan v. Railroad, 51 Mo,. App. 528. (3) The following authorities show that the personal judgment rendered against Augustus Smith in the original action, wherein suit was brought on the tax-bills, was absolutely void so far as the personalty is concerned: Neenan v. Smith, 50 Mo. 525; St. Louis v. Allen, 53 Mo. 286; St. Louis v. Bruennell, 56 Mo. 350; Kiley v. Forsee, 57 Mo. 390; City v. Miller, 66 Mo. 467; Firth v. Broadhead, 7 Mo. App. 563.

      M. F. Ringolsky and Edward C. Wright for respondent.
    (1) The petition in the taxbill suit was sufficient. R. S. 1899', sec. 672. (2) The judgment in the suit on the taxbills was sufficient and such as the court should have rendered, and the sheriff’s deed issued under said judgment was sufficient and passed the title to respondent herein. Wynn v. Cory, 48 Mo. 346; Boyce v. Christy, 47 Mo. 70; Stites v. Smith, 55 Mo. 363; Clay v. Hildebrand, 34 Kan. 694; Neenan v. Smith, 50 Mo. 525; Chandler v. Bailey, 89* Mo. 641; R. S. 1899, sec. 1734; Lovitt v. Russell, 138 Mo. 474; Long v. Waggoner, 47 Mo. 178; McCulloch v. Holmes, 111 Mo. 445; R. S. 1889, sec. 4956; Wileoxan v. Osborne, 77 Mo. 621; Owen v. Baker, 101 Mo. 407; R. S. 1899, sec. 672; Robinson v. Railroad, 53 Mo. 435; Shaler v. Van' Wormer, 33 Mo. 386; Bank v. Soalzo, 127 Mo. 164; Bradley v. Heffernan, 156 Mo. 653; Teaman v. Lepp, 167 Mo. 61. (3) The action .of the court below was without error and judgment should be affirmed. Const. Mo., art. 10, secs. 6 and 7; Chotean v. Nichols, 20 Mo. 448; Cochran v. Thomas, 131 Mo. 258; R. S. 1899, sec. 3210; Bradley v. Heffernan, 156 Mo. 653.
   FOX, J.

This appeal, on the part of the plaintiff, is from a judgment of the circuit court of Jackson county, Missouri, at Kansas City, in favor of the defendant. This proceeding is predicated upon the provisions of section 650, Revised Statutes 1899, by which it is sought to have- the court ascertain and determine the title, estate and interest of plaintiff and defendants herein respectively, in and to the following real estate: The east forty feet of a tract of land, bounded as follows, to-wit: On the north and west, by Westport avenue; on the south, by the south line of section 19’, in township 491, range 33; on the east, by lot one of Jones and Fisher’s Addition to . the city of Westport, now being a part of Kansas City.

Tbe answer interposed by tbe defendant to tbe petition was, first, a general denial of each and every allegation in said petition contained, except the allegation that defendant claims some title, estate or interest in the real estate described in the petition. The defendant further answering-, specifically denies that plaintiff has any right, title or interest in said land, or is in the possession of the same. Then follows in said answer the allegation that the defendant is, and for a long time past has been, the owner in fee of the real estate in controversy, and that he is now in possession of the same.

This canse was submitted to the court upon an agreed statement of facts. We do not deem it necessary to reproduce this statement, with all the details of the agreed statement of facts as disclosed by the record. A brief reference to the facts as applicable to this controversy will be sufficient to enable us to determine the legal propositions disclosed by the record.

It appears from the agreed statement of facts that in 1893 one Augustus Smith was the undisputed owner and in possession of the land in question, and that in September, 1893, a suit was filed against said Augustus Smith to enforce against the land a lien for certain special taxbills issued by the city of Westport to pay the cost of paving Main street, upon which street the land in question abutted. As the sufficiency of the petition in that case is challenged, it is well to reproduce it. It was as follows:

“Plaintiff for cause of action states, the city of Westport is a municipal corporation organized and existing under and by virtue of the laws of the State of Missouri, and is a city of the fourth class; that heretofore, and prior to the 17th day of June, 1891, the said city of Westport, for the purpose of. improving Main street from South Main street to the southern .city limits by paving the same in said city, by ordinance No. 143, entitled, ‘An ordinance to pave Main street-from South Main street to the western limits of the city of Westport,’ which ordinance was approved on the 17th day of June, 1891, that in pursuance to such ordinance, such improvement was made and said street was paved and, when the work was completed, the cost thereof was apportioned among the several lots and parcels of land to be charged therewith, and each lot and parcel of property was charged with its proper share of such costs, according to the frontage of the property, and there was charged against the following described lot or parcel of land in the city of Westport, county of Jackson, State of Missouri, to-wit: The east forty feet of a tract of land bounded as follows: On the north and west by Westport avenue; on the south by the south line of section nineteen, township forty-three, range thirty-three west, on the east by lot one, Jones and Fisher’s addition, in the city of Westport, the sum of $51.32, its proper share of such costs. That the said city of Westport, for the purpose of paying for such improvements, caused its certain tax-bill to be issued against the above-described property for the said sum of $51.32, which bill was issued on the 6th day of May, 1892, which bill bears interest at the rate of ten per cent per annum after thirty days from the date of issuance, and if not paid in six months from date of issue, it shall bear interest at the rate of fifteen per cent per annum until paid, a copy of which bill is hereto attached, and made a part of this petition. That this plaintiff, S. Howard McCutcheon, is the owner of such taxbill, and that the same nor any part thereof, has been paid. That the above defendants have, or claim to have, some interest in the above-described property, and that there is due plaintiff from defendants the sum of fifty-one and thirty-two one-hnndredths dollars, and interest thereon at the rate of ten per cent per annum, for the first six months from thirty days after date of issuance as above stated, and fifteen per cent 'per annum since such time for the improvements above set out. Wherefore, plaintiff asks judgment for the sum of fifty-one and thirty-two one-hundredths dollars and interest thereon at ten per cent per annum for six months from May 6, 1892, and at fifteen per cent per annum since such time, and the costs herein expended, and that the same be declared a special lien upon the above-described property, to-wit: The east forty feet of a tract of land hounded as follows: On north and west by Westport avenue; on the south by south line of section nineteen, township forty-nine, range thirty-three west; east by lot one, Jones & Fisher’s addition, in the city of Westport.
“Plaintiff for a second and additional cause of action states, that the city of Westport is a municipal corporation, organized and existing under and by virtue of the laws of the State of Missouri, and is a city of the fourth class. That heretofore, and prior to the 26th day of October, 1891, said city of Westport, for the purpose of improving Main street from South Main street to a point 658% feet west of the center of Chestnut street by curbing the same, pursuant to its ordinance No. 218 of the city of West-port, entitled, ‘An ordinance to construct curbing on both sides of Main street, from South Main street to a point 658% feet west of the center of Chestnut street, ’ which ordinance was approved and adopted on the 17th day of October, 1891. That pursuant to such ordinance such improvement was made, and said curbing was laid, and when such work was completed, the cost thereof was apportioned among the several lots and parcels of land to be charged therewith, and such lot or parcel of land was charged with its proper share of such cost, according to the frontage of the property, and there was charged for snch improvement, against the following described property, situated in the city of Westport, Jackson county, Missouri, to-wit: The east forty feet of a tract of land bounded as follows: “On the north and west, by Westport avenue; on the south, by south line of section nineteen, township forty-nine, range thirty-three west; on the east, by lot one, Jones & Fisher’s addition to the city of Westport, the sum of $22, its proper share of such costs. That the said city of Westport, for the purpose of paying for such improvement, caused its certain taxbill to be issued against the above-described property for the said sum of twenty-two dollars, which bill was issued on the 26th day of October, 1891, and which bill bears interest at the rate of ten per cent per annum after thirty days from the time the same was issued, and if not paid in six months after the date of issuance, then at the rate of [fifteen per cent per annum until paid; a copy of which bill is hereto attached, marked * Exhibit B,’ and made a part of this petition. That this plaintiff, S. Howard McCutcheon, is the owner of such taxbill, and that the same nor no part thereof, has been paid. That the above defendant owns, or claims to own the above-described property, and that there is due plaintiff, from defendants, for such improvements, the sum of $22 and interest thereon, at the rate of ten per cent per annum for the first six months from thirty days after date of issuance as above stated, and fifteen per cent per annum thereafter. Wherefore, plaintiff asks judgment for the sum of $22, and interest thereon at ten per cent per annum for six months from the 26th day of November, 1891, and at fifteen per cent per annum thereafter, and the costs of this action, and that the same may be declared a special lien upon the above-described property, to-wit: The east forty feet of a tract of land bounded as follows: On the north and west, by West-port avenue; on the south, by south line of section nineteen, township forty-nine, range thirty-three west; on the east, by lot one, Jones & Fisher’s addition to the city of Westport, Jackson county, Missouri.”

Upon this petition being filed, a summons was issued and returned personally served upon said defendant Smith.

At the regular January term, 1804, of the circuit court of Jackson county, judgment was rendered in the proceeding upon this special taxbill. As the sufficiency of this judgment is challenged, we will be pardoned for burdening this statement with a reproduction of it; it was as follows:

“8. Howard McCutcheon vs. Augustus Smith.
“Now on this day comes plaintiff by attorney, and defendant, though lawfully summoned, comes not, but makes default, and having failed to appear and plead to the petition herein, and this cause having been submitted to the court upon the evidence adduced, the court finds that defendant is indebted to plaintiff in the sum of $60.60 upon the first count of plaintiff’s petition, and the special taxbill therein set out, and that said taxbill'and the amount due thereon are a lien against the property in said taxbill described, which said real estate is owned and claimed by the defendant.
“The court further finds that defendant is indebted to plaintiff in the sum of $27.15 upon the second count in plaintiff’s petition, and the special taxbill therein set out, and that special taxbill and amount thereof are a lien against the property in said special taxbill described, which real estate is owned and claimed by defendant.
“It is therefore ordered and adjudged that plaintiff recover of and from defendant the sum of $87.75, With interest at the rate of fifteen per cent per annum, and all costs to be levied on the following described property, to-wit: The east forty feet of a tract of land bounded as follows: On the north and west, by Westport avenue; on the south, by south line of section nineteen, township’ forty-nine, range thirty-three west; on the east, by lot one, Jones & Fisher’s addition to the city of Westport, in Jackson county, Missouri, and that plaintiff have hereof special execution. ’ ’

On the 4th day of June, 1894, a special execution was issued upon said judgment in pursuance to the judgment theretofore rendered, and the real estate was, on the 30th day of June, 1894, under such special execution, sold and was purchased by Max Z. Levy, the respondent in this case. On the 10th day of July, 1894, the sheriff executed and delivered his deed to the said respondent in accordance with his purchase, and said deed was on the same day filed and recorded in the proper office for the recording’ of deeds. This sufficiently indicates the basis of the claim of title on the part of the respondent.

On August the 14th, 1897, Augustus Smith and wife executed and delivered to O. C. Clemons a quitclaim deed to the real estate in controversy, reserving the buildings upon said land. Shortly after the execution of this deed, the family of Augustus Smith moved from the premises, and the buildings also were removed. On the 28th day of June, 1900, Charles O. Clemons and Mary Ann, his wife, of Jackson county, Missouri, executed and delivered to the appellant in this cause a general warranty deed to the real estate involved in this controversy. This is a sufficient indication of the claim of title on the part of the appellant.

In May, 1901, this suit was brought under the provisions of section 650, Revised Statutes 1899, praying the court to define and adjudge by its judgment or decree the title, estate or interest of the parties hereto in and to said premises according to the statute in such cases made and provided.

It further appears from the ag’reed statement of facts that since the recording- of the sheriff’s deed, executed and delivered to the defendant, Max Levy, the defendant has also asserted and claimed a fee-simple title to said land. There are no improvements upon said land, and no one in the actual occupancy 'thereof; it also appears from the agreed statement of facts that plaintiff without any request from the defendant paid the taxes upon said land for several years. It was further agreed that at the time of the sheriff’s sale, and the delivery of the deed to the defendant, Levy, by the sheriff (which delivery was made on the 10th day of July, 1894) said Augustus Smith was the head of a family, and a resident of the State of Missouri, and was living and residing on said lot and had it fenced in, and said property in dispute was worth not to exceed one thousand dollars, and said Smith was in the possession of said lot at the time he and his wife conveyed the same to said Clemons, which was on the 14th day of August, 1897, and that said Smith and his grantees, C. C. Clemons and R. B, Robinson, have claimed to own the fee-simple title to said land since 1876.

This additional fact was agreed to by counsel for appellant and respondent, that is, at the time the tax suit was brought on _the taxbill against Augustus Smith, that Augustus Smith was living on the premises sued for, and that he lived there continuously with his family up until about the 15th of September, 1897, when he sold the ground to C. C. Clemons and moved the house off by an agreement in the deed, heretofore mentioned in the agreed statement of facts.

The cause was submitted to the court substantially upon the facts as heretofore indicated, and the findings of the court were for the defendant and judgment was rendered in accordance with such findings.

A timely motion for new trial was filed, which by the court was "overruled, and from the judgment rendered, the plaintiff prosecutes this appeal and the record is now before us for consideration.

OPINION.

The record in this cause discloses numerous assignments of reasons why the judgment of the trial court should be reversed.

I.

It is insisted by learned counsel for appellant that the trial court in the tax proceeding had no jurisdiction, for the reason that the suit should have been brought before a justice of the peace.

It will be observed that the aggregate amount of the. taxbills sued on in that proceeding was $71.32. It is sufficient to say upon that proposition that while under the provisions of section 1604, chapter 30, Revised Statutes 1889, to which our attention has been directed, such suit may be brought before a justice of the peace of the county for the enforcement of liens as above when the amount does not exceed $250, this provision of the statute by no means makes the jurisdiction of the justice of the peace exclusive in the enforcement of liens in all amounts less than $250.

Under the third subdivision of section 1674, Revised Statutes 1899, it is expressly provided that the circuit court and justice of the peace shall have concurrent jurisdiction in all civil actions for the recovery of money whether such actions be founded upon contract or tort, or upon bond or undertaking given in pursuance of law, when the sum demanded, exclusive of interest and costs, shall exceed fifty dollars. Consequently, under this provision, the circuit court had concurrent jurisdiction with the justice of the peace in the recovery of the amount in these taxbills and in the enforcement of the liens.

II.

It is next contended that the original taxbills sued on were not filed with the petition, and it is further contended, in relation to these taxbills, that they were improperly issued, and that by reason of these facts, the petition stated no cause of action, and the judgment rendered upon it was void.

'We have reproduced in full the petition in the proceeding to enforce the lien for the taxbills, and in our opinion it is sufficient to support the judgment rendered in this cause. It will be observed that the petition makes all the necessary allegations concerning the improvement of the street, and sufficiently identifies the ordinance under which such improvements were made, and then alleges that the said city of Westport, for the purpose of paying such improvement, caused a certain taxbill to be issued against the property which is described in the petition, giving the date of the issuance of the taxbill, and the rate of interest it bore after thirty days from the date of issuance; also contains the allegation that the plaintiff, S. Howard McCutcheon, was the owner of such taxbill. Then follows the allegation that the defendant had, or claimed to have, some interest in the property described against which the charge for improvement was made. There are two counts in the petition, which are substantially the same, except the amounts are different.

Directing our attention to this proposition, it is clear that the taxbills sued on, if filed, were filed as mere exhibits, and as is conceded in the brief of learned counsel for appellant, an exhibit is no part of the petition, even though it is attached, and the petition states it is made a part thereof. [Vaughan v. Daniels, 98 Mo. 230; Moore v. Dixon, 50 Mo. 424; Poulson v. Collier, 18 Mo. App. 583.]

If, under the law, the original taxbills had to be filed as exhibits, that was a matter that the defendant could interpose as a defense. There was personal service, and the defendant had an opportunity for his day in court, and if he failed to avail himself of any rights that he had under the law, he cannot now be heard in a collateral attack upon the judgment.

In Rankin v. Real Estate Company, 199 Mo. 345, it was sought to recover certain lands in the possession of the defendant. In that case it appeared by stipulation that defendant was in possession at the institution of the suit "’and at the date of trial- that- the title of the lot was in plaintiff and that he was entitled to recover unless he had been divested of title by a certain tax deed of date September 8, 1896. Plaintiff introduced the written stipulation and rested. Defendant then introduced the tax deed mentioned in the stipulation, together with the petition, summons and return, judgment, execution and report of sale in the tax proceeding. This tax proceeding was, according to petition, entitled: “The State of Missouri, at the relation and to the use of V. P. Hart, collector of the City of Sedalia, Plaintiff, v. John H. Rankin, Defendant.” The summons was so entitled. Personal service was had and judgment taken by default; the petition declared for city taxes; the judgment was for taxes without designating the kind of taxes. The execution recites that the judgment was for certain delinquent state, county and special taxes and interest, and for certain costs, and declares a special lien upon the lot in question. The deed contains the same recitals as are found in the execution as hereinabove set out. Timely and proper objections were made to the introduction of all this documentary evidence, and exceptions properly saved. Judge Graves, speaking for this court, thus ruled upon the two contentions that are applicable to the case at bar:

“I. Appellant contends that, if the judgment is for state and county taxes, it is void for the reason that the collector of the city of Sedalia has no right to sne for and collect such taxes. It is true that the relator in the tax proceeding, the collector of the city of Sedalia, had no right to sue for state and county taxes, but in this case the defendant was properly served with process, and had the city collector sued for state and county taxes, which he did not do, the proper time to have raised that question would have been by demurrer prior to judgment. The defendant in the tax proceeding made no appeaYánce, and had the petition demanded judgment for state and county taxes and the judgment had been entered in accordance with the petition, no complaint could afterwards be urged against the judgment. The defendant had an opportunity for his 'Say in court upon that question, but having ‘sinned away’ his day of grace, cannot now be heard in a collateral attack upon the judgment.
“II. It is also further contended that at the time the tax proceeding was instituted, by an amendment of the statutes, the lien for city taxes was given to the city of Sedalia, and the suit could not be-maintained in the name of the State for city taxes, and for that reason the judgment is void. What has been said above as to appellant’s first contention applies with equal force in reply to this second contention. If the suit was for city taxes, as in fact it was, then the defendant in the tax proceeding should have raised by proper plea the question of the right of the State to enforce the lien for city taxes. This was not done, and judgment followed. John Jones may not have a right to enforce a lien against my property, but if he brings suit to do so, and I, after being duly served with process, permit to him to obtain a judgment enforcing the lien, I would be in no position to attack the judgment c'ollaterally. This second contention is therefore ruled against the appellant.”

While it may be conceded that the causes of action provided for by statute in the enforcement of -liens,< may be termed statutory actions, however, when the circuit court obtains jurisdiction of such causes, it does not proceed to judgment in the exercise of mere statutory powers. In Charley v. Kelley, 120 Mo. l. c. 141, this court, in treating of actions of this character, thus, stated the law: ‘£ The causes of action were statutory, but the circuit court, in the exercise of its general jurisdiction, was given cognizance over them.”

It is next insisted that the law in force, as applicable to cities of the class to which the city of Westport belonged, required the city clerk, or other proper officer, to make out the special taxbills, and also it was essential that they be signed by the mayor and attested by the city clerk, and this not having been done, counsel for appellant contends that the taxbills were void. This was clearly a matter of defense to the suit upon such taxbills. The petition alleged that the city caused its certain taxbills to be issued against the property for the sums- with which such property was chargeable. This allegation must be treated, at least by implication, as a statement that the city caused legal taxbills to be issued, and manifestly if the taxbills were illegally issued, or defective in form or substance, it was a matter of defense that the defendant could avail himself of in responding to the summons, which had been personally served upon him.

The circuit court of Jackson county, Missouri, is a court of general jurisdiction. The definition of jurisdiction is nowhere more clearly or correctly stated than in Munday v. Vail, 34 N. J. L. 422. In treating of that subject.it was there said: ££Jurisdiction may be defined as the right to adjudicate the subject-matter in the given case. To constitute this, there are three essentials: First. The court must have cognizance of the class of eases to which the one to be adjudged belongs. Second. The proper parties must be present. And, Third, the point decided must be, in substance and effect, within the issue.” •

In Hope v. Blair, 105 Mo. l. c. 93, Macfarlane, J., in discussing the subject of jurisdiction, said: “A court may be said to have jurisdiction of the subject-matter of a suit when it has the right to proceed to determine the controversy or question in issue between the parties, or grant the relief prayed. What the controversy or issue, in any case, is, can only be determined from the pleadings. When the court has cognizance of the controversy, as it appears from the pleadings, and has the parties before it, then the judgment or order, which is authorized by the pleadings, however erroneous, irregular or informal it may be, is valid until set aside or reversed upon appeal or writ of error. This doctrine is founded upon reason and the ‘soundest principles of public policy.’ ‘It is one,’ says the court of Virginia, ‘which has been adopted in the interest of the peace of society, and the permanent security of titles. If, after the rendition of a judgment by a court of competent jurisdiction, and after the period has elapsed when it becomes irreversible for error, another court may in another suit inquire into the irregularities or errors in such judgment, there would be no end to litigation and no fixed established rights.’ ” Citing in support of the rule announced: Lancaster v. Wilson, 27 Gratt. 624; Adams v. Cowles, 95 Mo. 506; Rosenheim v. Hartsock, 90 Mo. 365; Morris v. Gentry, 89 N. C. 248; Porter v. Gile, 47 Vt. 620; Paul v. Smith, 82 Ky. 451; 1 Black on Judg., sec. 245.

In Charley v. Kelley, supra, it was contended by the appellant in that case, which was concerning the enforcement of tax liens, that the circuit court was exercising special statutory powers, and the jurisdiction, as of inferior tribunals, must appear on the face of the record, otherwise no valid judgment could be rendered. It was further contended that no presumptions favorable to the validity of the proceedings and judgment can be indulged. In discussing that proposition this court held that the position of appellant was not sound, and that the circuit court in proceeding to judgment in the enforcement of these liens, was not exercising mere statutory powers. The causes of action were statutory, but the circuit court, in the exercise of its general jurisdiction, was given cognizance over them, and that the cause of action was brought within the general jurisdiction of the court. ■

The taxbills in the case at bar may be collected by suit in any court of competent jurisdiction, and as was said by this court in the case last cited, “No special or summary proceeding in derogation of common law, is required to be followed. In such case the same presumptions attend its jurisdiction, in the silence of its record, as in the case of judgments or decrees rendered in the exercise of its general jurisdiction. They are not open to collateral attack.” Citing in support of such rule announced: Brown v. Walker, 11 Mo. App. 230; Wellshear v. Kelley, 69 Mo. 351; Allen v. McCabe, 93 Mo. 143.

In Wellshear v. Kelley, 69 Mo. 343, this court, in treating of a tax proceeding, expressly held that if the court had jurisdiction of the subject-matter of the suit, the proceedings and the judgment thereon stand upon the same ground as the proceedings and judgment in a suit between individuals. There is no principle which requires the application of different rules to test the' validity of a judgment in a cause between the State and an individual from those which apply to a judgment rendered in a suit between individuals. The same presumptions in favor of the judgment .are indulged in the one case as in the other, and it was said in that case: “Although a statement may be defective, yet, if it appear after the verdict, that it could not have been given, or. that a judgment could not have been rendered without proof of the matter omitted, the defect will be cured by the statute. ’ ’

In Castleman v. Relfe, 50 Mo. 583, the rule was announced in no uncertain or doubtful terms that “the circuit court is a court of general jurisdiction, and when it has acquired jurisdiction, however erroneous and irregular its proceedings may be, they are regarded as valid and binding until they have been reversed or annulled by suitable proceedings instituted for that purpose, and titles acquired by sales under them will be protected.”

That the circuit court in the case at bar had jurisdiction of the subject-matter, as well as of the person of the defendant, is too plain for discussion, and if the rules as heretofore indicated are to be longer followed, then it must be ruled that the mere omission to file as an exhibit the original taxbills, or the fact that such original taxbills were invalid, are matters of defense, and if the defendant in that proceeding failed to avail himself of such defense, he cannot take advantage of such failure by seeking in this collateral proceeding to assail the judgment in that cause.

III.

It is next insisted by counsel for appellant that the lien of the taxbills, upon which the tax suit was predicated, had expired. It is unnecessary, in order to clearly determine this proposition, to discuss the provisions of section 1592, Revised Statutes 1889, which provides the manner and method of issuing taxbills and when they become due, but it is a sufficient answer to the contention of appellant upon that question to say that what was said upon the other propositions is equally applicable to this one. If these taxbills were invalid, or their force and vitality had expired by reason of being barred by the statute, that was clearly a matter of defense to be interposed upon the trial of the tax proceeding.

In Wellshear v. Kelley, supra, it was contended by appellant that upon the face of the petition in the suit against Mary A. Henry, it appeared that a portion of the taxes sued for and embraced in the judgment, were barred by the Statute of Limitations, and that the judgment was, therefore, void. This court, in responding to that contention, said: “It was for Mary A. Henry, the defendant in that suit, to make that defense there, but neither she nor any one else can make it in this collateral proceeding.”

It is clear that even though it be conceded that the lien of the taxbills had expired, yet that was a matter for the court to determine in that case. It had jurisdiction of the subject-matter, as well as the parties, and, as heretofore stated, however irregular or erroneous the judgment of the trial court may have been upon the question as to whether or not the lien of the taxbills had expired, the judgment and finding of the court must be regarded as valid and binding until it has been reversed or annulled by proper proceedings instituted for that purpose.

IY.

Appellant also complains that the petition fails to allege that the taxbills had not been paid. The allegation upon this question is as follows: “This plaintiff, S. H. McCutcheon, is the owner of such taxbill, and the same, nor any part thereof, has been paid. ’ ’

Now while it is true that this allegation was merely a negative pregnant, yet in our opinion it is not sufficient to warrant this court, in saying that the petition did not state any cause of action, and that the judgment upon such petition was absolutely void. Manifestly, that suit was for the recovery of the amount of those taxbills and the trial court could not have reached the conclusion it did, or rendered the judgment for recovery of the amounts of such bills, unless it necessarily found that they had not been paid.

The Statute of Jeofails, section 672, Revised Statutes 1899, provides in certain subdivisions of that section, applicable to the question now in hand, that no judgment after trial or submission, or upon failure to answer, shall be reversed, impaired or in any way affected by reason of the following things:

“Fifth: For mispleading, or insufficient pleading.
“Eighth: For the want of any allegation or averment on account of which omission a demurrer could have been maintained.
.. “Ninth: For omitting any allegation or averment without proving which the triers of the issue ought not to have given such a verdict.
“Thirteenth: For any informality in entering a judgment or making up the record thereof, or in any continuance.or other entry upon the record.”

This court in Robinson v. Railway Construction Company, 53 Mo. 435, held that “the defendant’s failure to answer the plaintiff’s petition admitted his right of recovery, if the petitioner stated facts sufficient to constitute a cause of action. And the law is, that when a judgment is given on failure to answer, it cannot be reversed, impaired or in any way affected, by reason of the omission of-any allegation or averment, on account of .which omission a demurrer could have been maintained, nor for omitting any allegation or averment, without proving which the triers of the issue ought not to have given a verdict. ’ ’

In People’s Bank of New Orleans v. Scalzo, 127 Mo. 164, 29 S. W. 1032, in discussing the proposition now under consideration, this court, speaking through Judge Gantt, announced this rule: “It does not follow that, because a petition is defective, and subject to a general demurrer, it would be insufficient to sustain a verdict. On the contrary, the well-settled rule, both at common law and under our code, is, that, if a material matter be not expressly averred in the petition, but the same is necessarily implied from what is stated in the context, the defect is cured after verdict, the doctrine resting on the presumption that plaintiff proved on the trial the facts' imperfectly alleged, the existence of which was essential to his recovery.” Citing in support of such rule: Rushton v. Aspinall, 1 Smith’s Lead. Cases (4 Am. Ed.) 649, notes 654; 2 Tidd’s Practice, 919; Shaler v. Van Wormer, 33 Mo. 386; McDermott v. Claas, 104 Mo. 14; Bank v. Leyser, 116 Mo. 61; Bliss on Code Plead. (3 Ed.), sec. 438; Lynch v. Railroad, 111 Mo. 604; R. S. 1889, sec; 2113, clauses 8 and 9.

Following the rule as above indicated, it must be held that, even conceding that there was an omission to state that the taxbills were not paid, such omission is cured by the finding and judgment of the trial court, and cannot be made the basis of a collateral attack upon the judgment in that proceeding.

V.

It is also suggested by counsel for appellant that the sheriff’s deed in the taxbill proceeding, upon which the defendant in this cause predicates his claim to title, was invalid. It is insisted that it is essential in the recitals of the deed to designate after the word “publish” the character of the paper,, as to whether it was a weekly or a daily, or weekly and daily paper. In Chandler v. Bailey, 89 Mo. 641, it was expressly ruled that “a sheriff’s deed which recites a notice of sale for twenty days ‘ by advertisement in the Gazette-Tribune, a newspaper published in my said county,’ is not void because it omits to state that the paper was a daily or weekly newspaper. ’ ’" This deéd, the sufficiency of which is challenged, concerning the subject of notice, recited: “And having prior to the day of sale hereinafter mentioned, given at least twenty days notice of .the time, terms and place of sale, together with a description of the real estate to be sold, and where situated, as the law directs, by publishing' said notice in the Kansas City Mail, a newspaper printed and published regularly in Kansas City, Jackson county, Missouri,” etc. In our opinion this recitation as to the publication of the notice of sale was at least a substantial compliance with the law upon that subject.

It is also suggested that in one portion of the deed Robert S. Stone, sheriff of Jackson county, supplants the name of John P. O’Neill. It will be observed that this apparent discrepancy in the deed was not brought to the attention of the trial court, and manifestly it escaped the attention of counsel both for respondent, as well as appellant. At most, this was simply a clerical mistake and is a mere irregularity, and it is made manifest that the counsel in this case, as well as the trial court, treated this deed as an act of John P. O’Neill, sheriff of Jackson county. Manifestly when this conveyance is considered from its four comers, there is no escape from the conclusion that the sale was made by John P. O’Neill, as sheriff, and that he executed and delivered this deed.

Counsel for appellant does not cite any authority to support the contention that this clerical mistake would render the deed void.

VI.

This brings us to the final contention of learned counsel for appellant; that is, that the judgment rendered in the tax proceeding was a personal judgment against Augustus Smith. To this insistence, we are unable to give our assent. While the judgment does recite that the defendant is indebted to plaintiff in the sum of $60.60 upon the first count of plaintiff’s petition, it will be observed that following that recitation, reference is made to the special taxbill embraced in the petition, and then recites that said taxbill, and the amount due thereon, are a lien against the property in said taxbill described, which, said real estate is owned and claimed by defendant. The same recitation occurs in the judgment as to the second count. Then follows the order of judgment for the recovery of the total amount of both counts with interest, and directs such amounts to be levied upon the property in controversy, which is described in the judgment.

We are of the opinion that this judgment properly ordered and adjudged the enforcement of the taxbill liens, and that the contention of the appellant upon that proposition is without merit.

Having reached the conclusion as herein indicated, that the judgment rendered in the taxbill proceeding-is not a personal judgment, hut was simply the enforcement of a lien for certain taxes which had been levied upon such property, it logically follows that the question of a homestead being occupied by Augustus Smith at the time of the sale of this property, has no place in this controversy. Even though it was the homestead, it would not follow from that, that it was exempt from taxation. The beneficent provisions of our statute providing for the exemption of homesteads by no means reached to that extent of exempting a homestead from taxation. Manifestly learned counsel for appellant embraced the homestead question in the agreed statement of facts upon the- theory that the judgment against Augustus Smith was simply a personal judgment, and was not one which undertook to enforce a lien for certain taxes levied upon the property.

We have given expression to our views upon the controlling questions disclosed by the record, which results in the conclusion that the judgment of the trial court should be affirmed, and it is so ordered.

All concur.


source: Caselaw Access Project

author: GANTT, P. J.

license: Public Domain

text:
    HIMMELBERGER-HARRISON LUMBER COMPANY, Appellant, v. JAMES KEENER et al.
    Division Two,
    March 9, 1909.
    1. ORDER OF PUBLICATION: Made by Clerk: Meaning of “In Vacation.” Under Sec. 3494, R. S. 1879, allowing service and notice to non-residents by order of publication and the publication thereof, when the facts authorizing publication are neither stated in plaintiff’s petition nor in the affidavit filed at the commencement of the suit, no order of publication was allowable in vacation. But where the court was in session in regular term on March 20th, and on that day adjourned the term to June 16th, it was between those dates “in vacation,” and during that interim could make no order of publication, but the clerk could do so, and an order of publication made by him on June 12th, if supported by a sufficient affidavit stating non-residence and if otherwise regular, was valid, and sufficient to support a judgment in the tax suit.
    2. -: Affidavit: Filed Before Justice. The affidavit made before a notary public and stating the essential fact that defendant was a non-resident, although first filed before a justice of a peace, who had no jurisdiction of the tax suit, was sufficient to support the order of publication. The presumption is that plaintiff withdrew it on discovering the justice had no jurisdiction, and filed it with the petition at the commence-men of the suit with the clerk of the circuit court.
    3. -: -: Untimely Filing. A delay of eight days between the making of the affidavit of non-residence and the filing of the petition did not render the order of publication void. The delay should not be unreasonable, but the statute should be given a liberal construction.
    Appeal from Stoddard Circuit Court. — Hon. J. L. Fort, Judge.
    Reversed and remanded (with directions).

      Oliver & Oliver and Ralph Wammack for appellant.
    (1) The trial court committed reversible error in ' holding that the circuit court of Stoddard county was not in vacation from and after March 20,1884, to June 16, 1884; and in holding that the clerk of said circuit court during that interim of time was without legal power to make an order of publication. June 12, 1884, was in the vacation of the court. Sec. 575, E. S. 1899. (2) It is manifest from an examination of the record that the circuit court itself could not make an order of publication from and after March 20, 1884, up to June 16, 1884, because it had adjourned from the one date to the other. The court was -therefore powerless to act, and if respondent’s contention is true, the clerk was without power to act. And so we are driven to the remarkable conclusion that for eighty-eight days the circuit clerk of Stoddard county was without legal power to perform the duties enjoined upon him by the statute in matters of this kind. (3) Adverse possession for ten years, under color of title, will not only bar recovery, but will extinguish the title and confer it upon the adverse occupant. Sec. 4262, E. S. 1899; Eidgway v. Holliday, 59 Mo. 453; Ekey v. Inge, 87 Mo. 493'.

      Henry S. Shaw and J. F. Blankenship for respondents.
    There must be, either an allegation of non-residence in the petition, or an affidavit embodying that fact, and the affidavit must be filed’ at the commencement of the suit. E. S. 1879, sec. 3494; Quigley v. Bank, 80 Mo. 289; Schell v. Leland, 45 Mo. 289; Harness v. Cravens, 126 Mo. 233. The fact of the non-residence of the defendant must exist at the time of the making and filing- of the affidavit. New York Baptist Union, Etc., v. Atwell, 95 Mich. 239; Crombie v. Little, 47 Minn. 581; Campbell v. McCahan, 41 111. 45; Adams v. Hosmer, 98 Mich. 51; Armstrong- v. Middle-staff, 22 Neb. 711; 17 Ency. Plead. •& Prac., 58. The affidavit was not made in this case, but in a case in a justice’s court, and was a nullity in that proceeding. R. S. 18791, secs. 6836, 2876, 473. Justices’ courts had río jurisdiction of tax suits. State ex rel. v. Hopkins, 87 Mo. 519'. The clerk had no authority to make the order of publication in tbe original tax suit, because tbe court was not in vacation, but only in recess. State v. Derkum, 27 Mo. App. 628; Hadley v. Bernere, 97 Mo. App. 314; Warner v. Donohue, 99 Mo. App. 37. For legislative construction of law see: Laws 1883, p. Ill; Laws 1885, p. 190. Tbe Acts of 1883 and 1885 are not declaratory of what tbe law was, but are enactments of a new law; if they were, they would not have a retrospective operation. Black on Interpretation of Laws, p. 371. Whenever proceedings are intended to result in an adjudication, and such proceedings differ from the course of tbe common law, a strict compliance with all material directions of tbe statute is essential. Young v. Downey, 150 Mo. 326; Harness v. Cravens, 126 Mo. 233.
   GANTT, P. J.

This is a suit to quiet title to four hundred and eighty acres of land situated in Stoddard county, Missouri.

In its petition tbe plaintiff asserts ownership in this land and open, notorious, hostile, continuous and adverse possession of it under a bona-fide claim of title for more than ten years prior to tbe bringing of this suit and states that during all that time it and its grantors exercised all tbe acts of ownership and dominion over said land of which it was susceptible.

Tbe defendants are tbe children and heirs at law of J ames Keener, deceased, and in their answer denied plaintiff’s title and possession in and to tbe lands described, and aver ownership’ of tbe said lands in James Keener up to tbe time of bis death in June, 1892, and 'their right to tbe said lands by reason of descent as children and heirs at law of said James Keener.

On tbe trial it was agreed that James Keener was tbe common source of title. Tbe plaintiff then offered a sheriff’s deed from N. M. Cobh, sheriff of Stoddard county, to William P. Renner, dated September 15, 1885, and recorded September 22, 1885, conveying the lands in controversy to satisfy a judgment for taxes ■against said land for the year 1882. The defendants objected to thelntroduction of this deed, for the reason that they insisted that the judgment under which it was rendered was void, the defendant being a non-resident and there was no affidavit that the defendant was a non-resident of the State of Missouri or had absconded or had absented himself from his usual place of abode in this State; that there was no affidavit justifying the order of publication and the affidavit did not allege that ordinary process of law could not be served upon birri in this State, and the notice to the defendant was not published for four weeks but only for four times, or twenty-one days instead of twenty-eight days; and for the further reason that there was no order of .record in the case or otherwise authorizing the publication and the clerk had no authority to make the order of publication. The court admitted the deed in evidence subject to the objections. Among these objections, the chief reason assigned, and the one finally sustained by- the trial court, was that the clerk of the circuit court of Stoddard county had no authority to issue an order of publication at the time' this order of publication was issued, to-wit, on June 12, 1884. The defendant contended that the circuit court of Stoddard county was in session on that date and the clerk was only authorized to issue orders of publication in the vacation of the court. In support of these objections, the defendants offered the following testimony: First, the order of publication made by the clerk oh the 12th day of June, 1884, which was in the ordinary and usual form of such orders made by clerks in the vacation of the court. Second, the affidavit of C. L. Keaton, the attorney for the collector in the tax suit, which was in the following words:

‘ ‘ The State of Missouri at the relation and to the use of William C. ITarty, Collector of the Revenue of Stoddard county, State of Missouri, vs. James Keener, Defendant.
“Before Moses Harvey, a Justice of' the Peace for Stoddard county, Missouri.
“C. L. Keaton, attorney for and in behalf of the above-named plaintiff, makes oath and says, that the above-named defendant in the above-entitled cause is a non-resident and does not reside in'the State of Missouri. C. L. Keaton.
‘ ‘ Subscribed and sworn to before me this 4th day of June, 1884.
“My term of office expires January 12th, 1887.
“Emil M. Weber, Notary Public.”
This affidavit was endorsed as follows:
“State of Missouri vs. James Keener, Piled June 12th, 1884.
“C. H. Barham, Clerk.
“Piled June 4th, 1884.
“Moses Harvey, Justice of the Peace.”

Third, the proof of the publication was attested by the affidavit of the publisher of the newspaper and showed that it was published as follows: The first insertion, June 14, 1884; the second, June 21, 1884; the third, June 28, 1884, and the fourth, July 5, 1884. Defendant then introduced Thomas H. Ezell who testified he was clerk of the circuit court and the custodian of the records of the said court, and that the records of the said court which he produced in evidence showed that the said court by its order adjourned the March term, 1884, on March 20th to June 16, 1884, on which day it met again. The sheriff’s deed was in the ordinary form of a sheriff’s deed and recited that on the 17th day of December, 1884, judgment was rendered •in the circuit court of Stoddard county in favor of the State of Missouri at the relation and to the use of William O. Harty, collector of the revenue of Stoddard county, for the State of Missouri, and against James Keener, for the sum of $12.55 for certain delinquent state, county and special taxes and interest assessed and found by the said court to be due and unpaid, upon the south-east quarter and west half of section 33, township 25, range 11, and that said taxes and interest found due upon said real estate for the year 1882 amounted to $12.55, and certain costs which had been taxed at $23.75, which were declared a lien in favor of the State of Missouri upon the said above-described tracts. And then recited the issue of a special execution, the receipt of the same by the sheriff and his levy upon said real estate and his sale of the same at public vendue, and that William P. Renner was the highest and best bidder for the same at and for the price and sum of $32 in consideration of which he sold, transferred and conveyed the same to the said Renner. This deed was duly acknowledged in open court and recorded.

The plaintiff then offered in evidence other conveyances regular in form down to the plaintiff, and then offered in evidence also testimony tending to prove title in plaintiff by adverse possession for more than ten years prior to the bringing of this suit.

As indicating the court’s view of the law upon the facts, the court gave the following two instructions:

“1. The court declares the law to be that plaintiff has not adduced any evidence in this cause to justify a finding for plaintiff to title to the lands in controversy by adverse possession and the finding will be for the defendants.
“2. That if the court finds and believes from the evidence in the cause that on the 20th day of March, 1884, the circuit of Stoddard county, Missouri, was adjourned to sit again on the 16th day of June, 1884, and said adjournment was not a final adjournment of the March term, 1884, of said court until the next regular term in course, but was merely an adjournment of said March term, 1884, until a fixed date on which said March term continued to be held until the 17th day of June, 1884, on which date said term was adjourned until court in course, and that on the 12th day of June, 1884, and pending the temporary adjournment of said March term, 1884, the clerk of said court issued an order of publication against one James Keener in a cause entitled, £ The State of Missouri, to the use of W. O. Ilarty vs. James Keener,’ then pending in said court, for the reason that said James Keener was a non-resident of the State of Missouri, and caused notice to be served upon said Keener by publication, and that said cause came on to be heard at the September term, 1884, of said circuit court of said Stoddard county, and judgment rendered upon said service upon and notice to said James Keener, and that the lands of said Keener were sold to satisfy said judgment; and a deed executed to W. P. Renner upon a prior levy and sale of said lands under said judgment, and that plaintiff in this cause claims under said deed; then and in that event said order of publication and all proceedings based thereon, including said deed, were void for want of authority in said clerk to make.or issue order of publication, or the process and notice based thereon, and the finding of the court will be for the defendants. ’ ’

To the giving of such declarations the plaintiff duly excepted.

The court refused other declarations of law asked by the plaintiff. Thereupon the court entered judgment for the defendant and by its decree dismissed the plaintiff’s bill and vested title to the lands in controversy in the defendants, and in due form and after proper steps the plaintiff appealed to this court.

I. The first vital proposition in this case is whether the circuit court erred in holding that the circuit court of Stoddard county was not in vacation from and after March 20, 1884, to June 16,1884, and consequently that the clerk of said court during said interim was without legal power to make an order of publication.

The Revised Statutes of 1879, section-3494, under which the tax proceeding involved in this suit was prosecuted, provided: “That in suits .... for the enforcement of liens against either real or personal property, 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, if the plaintiff, or other person for him, shall allege in his petition, or file an affidavit,' stating that part or all of the defendants are non-residents of the State, .... the court in which said suit is brought, or, in vacation, the clerk thereof, shall make an order directed to the non-residents or absentees, notifying them of the commencement of the suit,” etc.

In Schell v. Leland, 45 Mo. 289, it was held by this court that under the statute allowing service and notice to non-residents by orders of publication and the publication thereof, when the facts authorizing publication are neither stated in plaintiff’s petition nor in the affidavit filed at the commencement of the suit, no order was allowable in vacation, ‘Wagner, J., speaking for the court, saying: “The above section is the only one where provision is made for the court or clerk in vacation, issuing an order of publication. The order can only be made by strictly-complying with the statute; for, in all cases where constructive service is substituted for actual notice, strict compliance is required.” This case has often been approved by this court. [State ex rel. v. Field, 107 Mo. l. c. 451; Quigley v. Bank, 80 Mo. 289; Hiles v. Rule, 121 Mo. l. c. 255; Williams v. Monroe, 125 Mo. l. c. 586; Harness v. Cravens, 126 Mo. l. c. 249; Charles v. Morrow, 99 Mo. 638; Sutton v. Cole, 155 Mo. l. c. 213; Parker v. Burton, 172 Mo. l. c. 91, 92.]

Adopting this as the settled law of this State, the record presents the question clear and sharp, was there a vacation of the circuit court of Stoddard county in the interim caused by the adjournment of that court on March 20, 1884, to June 16, 1884, when it again convened, so as to authorize the clerk, of said court to make an order of publication on June 12, 1884? In Jacob’s Law Dictionary, vacation is defined as being “all the time betwéen the end of one term and the beginning of another; it begins the last day of every term as soon as the court rises.” But in Brown v. Hume, 16 Gratt. (Va.) l. c. 466, it was said: “Thus, whether we look to its own appropriate definition or seek to deduce its meaning from the use made of its correlative by the law-writers, it would seem that there is not attached to the word vacation, a Iwell-ascertained, fixed, single, unvarying, technical meaning which is to control the interpretation of a statute in which the word has been employed; but that, on the contrary, there are several well-received meanings of the word.” The opinion in that case is well reasoned and its conclusion well sustained.

In Thompson v. Benepe, 67 Iowa 79, the Supreme Court, while recognizing the common law definition, said: ‘ ‘ But whether this meaning should be given to the word in any particular instance depends upon the subject-matter, and the necessity which exists that some other meaning should be adopted.”

In Conkling v. Ridgely & Co., 112 Ill. 36, the validity of a confession of judgment before a clerk of the circuit court in vacation was challenged. The regular October term under the law commenced October 2, 1882, and remained in session until December 27th, at which time it adjourned until January 29, 1883, at which day it reconvened and finally adjourned February 3, 1883. On January 12, 1883, the judgment was confessed before the clerk. During term time the law required judgments by confession to be entered in open court. The question was whether there was a vacation so that the clerk could enter the confession and it was held that there was a vacation, the court saying, “We think the term ‘vacation’ may well be given a different meaning from what it had at common law,” but did not mean the ordinary daily recess of the court. [See, also, Furniture Co. v. Mattos, 13 Ind. App. 221.] In other jurisdictions, notably, Massachusetts, it has been ruled that authority to a clerk to take a recognizance in vacation did not authorize him to take one on Saturday where the court had adjourned from Friday to Monday and the court adhered to the English rule as to terms and vacations. [Brayman v. Whitcomb, 134 Mass. 525.]

Up to the Act of March 15, 1883, there was a diversity of opinion as to what adjournment or recess of a court constituted a vacation within the meaning of our statutes permitting or authorizing various acts to be done by the judge or clerk in vacation. By that act it was provided: “Whenever any act is authorized to be done by, or any power given to, a court or judge thereof in vacation, the words ‘in vacation’ shall be construed to include any adjournment of court for more than one day.” [Laws 1883, p. 112.] After-wards, this clause of the act of 1883 was amended by the Act of March 7, 1885, by adding the words “or whenever any act is authorized to be done by, or any power, given to, a clerk of any court in vacation, the words ‘in vacation’ shall be construed to include any adjournment of court for more than one day.” [Laws 1885, p. 190.]

In State v. Derkum, 27 Mo. App. 628, the Kansas City Court of Appeals had occasion to construe the Act of 1885 in connection with sections 1762 and 1769, Revised Statutes 1879, in respect to the filing of in-formations in misdemeanor cases. In that case it appeared that the circuit court of Cole county .convened December 7, 1885, and on December 23d adjourned to January 11, 1886; on January 4, 1886, the prosecuting attorney filed an information against the defendant, for selling liquor without a license. There was no entry of record of the filing of this information. The defendant filed his motion to quash the information for the reason that it did not appear -to have been filed in court and as the court was not in vacation on January 4th, the contention was that it was not filed in any place contemplated by law. In construing the Act of 1885 the court called attention to the fact that section 3126 [R. S. 1879] of which the Act of 1885 was amendatory provided that “the construction of all statutes of this State shall be by the following additional rules, unless such construction be plainly repugnant to the intent of the Legislature, or of the context of the same statute.” By section 1769 it was provided: “If such warrant be issued in term, it shall be made returnable forthwith; but if issued in vacation, it shall be made returnable to the next term thereafter; and if defendant be arrested during the term, he shall be brought into court; but if he be arrested in vacation of the court, the officer shall bail him,” etc. And the court held that the vacation spoken of in section 1769 clearly referred to the vacation between courts, that is, between a term and the next term thereafter, and that it could not be supposed that the Legislature meant one thing by the term “in vacation” in section 1762 and a different thing by the same term in section 1769, and therefore construed the information in that case to have been filed in term time. We see no occasion for discussing whether that decision was correct or not in view of the several statutory provisions considered by the court.

In Hadley v. Bernero, 97 Mo. App. 314, the question arose as to whether an appeal from a judgment in an unlawful detainer case had been taken within six days after its rendition, it being the contention of the respondent that the St. Louis Circuit Court was holding its regular term and therefore that the appeal must have been taken within six days under the statute. [Sec. 3370, R. S. 1899.] No proof was offered to show that the court was not in vacation when the judgment of the justice was rendered. Speaking to the general question now under consideration, the court said: “As to the meaning of the sections of the statutes bearing on this question, we think they use the word ‘term’ to signify the entire period from the 'first day of a term as fixed by law to its final close, and the word ‘vacation’ to signify the period between the adjournment of any term and the beginning of another, not merely an interval when the court is not in session from having adjourned for more than a day but not to court in course. [Brayman v. Whitcomb, 134 Mass. 526; Bronson v. Schulten, 104 U. S. l. c. 415; State v. Derkum, 27 Mo. App. 628.] By this construction a temporary adjournment of the St. Louis Circuit Court would not have relieved the appellants of the duty to perfect their appeal from the judgment of the justice of the peace if given in term time, inside of six days after its rendition.”

That case was followed by 'the St. Louis Court of Appeals in Warner v. Donahue, 99 Mo. App. 37. In that case the circuit court of St. Louis county had adjourned its "September term from November 30th to December 30th, in order to hold court in the other counties in the circuit, and it was held that this adjournment did not terminate the September term of the St. Louis County Circuit Court so-as to exonerate the appellant from taking his appeal within six days from the rendition of the judgment, in this interim.

These three cases are the only ones which we have been able to find in the decisions of the courts of appeal.

In Railroad v. Evans & Howard Brick Co., 85 Mo. 307, it appears that a writ of error and an order of supersedeas were obtained from one of the judges of this court pending the adjournment of this court for more than one day. On a motion to vacate the order of supersedeas and to dismiss the writ of error, among other things it was said: “And the Laws of 1883, page 111, amending section 3126, Revised Statutes 1879, when considered in connection with other statutory provisions already noticed, fully authorizes a judge of this court, when it has adjourned for more than one day, to inspect the record in a cause and to allow a writ of error to stay execution upon the usual terms. The order in this cause made by the circuit court was a final order, from which an appeal or writ of error would lie. ’ ’

"While the St. Louis Court of Appeals in the two cases just cited adopts the common-law definition of the term “vacation,” it is to be observed that they make no citation of the decision in Brown v. Hume, 16 Gratt. 466, or Thompson v. Benepe, 67 Iowa 79, or Conkling v. Ridgely & Co., 112 Ill. 36, but their decision rests in the main upon the common-law definition of the word and Brayman v. Whitcomb, 134 Mass. 526. We have no doubt whatever of the correctness of the decision in Hadley v. Bernero, 97 Mo. App. 314, on the ground that there was no evidence in that case to show that the court was not in vacation on the day when the judgment of the justice of the peace was rendered. And the presumption was properly indulged that as the circuit court retained and decided the cause, it found the appeal was taken in vacation. [Bauer v. Cabanne, 11 Mo. App. 114.] The general statement of the law as to the meaning of the word “vacation” was not essential to the decision of the cause.

In the case of Ex parte Santee, 2 Va. Cases 363, in delivering the opinion of the judges, Dade, J., said in speaking of the definition of the word “term” in Jacob’s Law Dictionary, “It cannot be denied that in common parlance in some of the statutes, and amongst the law-writers, the word has been often indiscriminately used to express the actual session of the court, and the stated time when it should sit. This gives room for construction, and imposes the necessity of inquiring into the reason of the law, of considering the word in the context, and comparing the relative provisions of the section, so as to ascertain the sense in which the word was used by the Legislature in this particular law; and upon the result of this inquiry the decision of this question turns.” Proceeding to examine and comment on the several clauses of the section, he came to the conclusion that in each of the passages in Which the word was used it was intended to denote not the time appointed for .the holding of the court, but the actual sitting of the court.

In Brown v. Hume, supra, Judge Daniel, in the further discussion of the meaning of the word “vacation,” said: “In view of the evil sought to be cured by the Act of 1819, to-wit, the useless and unnecessary imprisonment of debtors, we can see no reason for supposing that the Legislature, in framing the law of 1819, intended to leave an interval in which a party detained for want of bail could not confess judgment either in the clerk’s office or in court. And as the language of the statute readily admits of an interpretation extending the period during which the clerk .may take confession in his office, to the commencement of the actual ■ sitting of the court, no reason is perceived why we should not adopt that interpretation.” Accordingly it was held in that case that the Code of Virginia, page 171, section 41, which only authorized a confession of judgment in the clerk’s office in vacation, permitted the confession of a judgment in the clerk’s office on the morning of the first day of the term of the court before the hour for the opening of the court for that term.

And we have seen the Supreme Court of Illinois in Conkling v. Ridgely & Co., 112 Ill. 36, sustained a confession of a judgment in an interval between the adjournment of the circuit court from December 27th to January 29th, and held that to hold otherwise would be to adopt a legal fiction and give it effect over what was the real condition, to the denial of the enlarged remedy which was intended to be given by the statute. Said the court: “We think that under this act the term ‘vacation’ may well be given a different meaning from what it had at common law, as above given. Under the earlier organization of courts of England, ‘terms’ of the court were four periods in each year. They commenced on fixed days, and had a fixed time of termination, and they aggregated ninety-one days. The vacations- embraced all the days in the year not included in the ‘terms.’ Any such a period of recess of a court of more than a month’s duration, as we find in this case, was unknown in that system. The early laws of this State, prior to December 9, 1871, provided for dividing the State into judicial circuits, and fixed the times for the commencement of the terms of the circuit court in each county. In no case did the statutes in express terms fix the duration of the terms of such courts, though as the judges were required to hold terms in the different counties on fixed days, and had no authority to hold court in one county at a time the law required them to hold court in another, and only one term of a circuit court could be held or be open at any one time in a circuit, it followed, as a necessary construction of the statute, that upon the occurrence of the time fixed by law for the opening of the court in any one county in a circuit, the circuit courts in every other county stood adjourned until court in course. [Archer v. Ross, 2 Scam. 303.] ” The court then comments upon the change of the statutes of Illinois, which provided that terms of the circuit court might he held in two or more counties in the same circuit at the same time, and that it should not be necessary to close any term in any county before the business of that term was disposed of, • in order to begin a term in any other county in the same circuit, if any circuit .judge of the State 'could be had to preside over either of said terms. The Act of February 22, 1872, of that State “conferred upon the circuit courts, when in session, the power to adjourn to any day not beyond the first day of the next term of the court in that county fixed by law. The effect of these statutes was to change the law in respect to the peremptory adjournments made necessary by the laws in force before, and to leave the duration of the terms of the courts practically at the discretion of the judges.” The striking similarity of that judicial system and our own in regard to the power of courts to adjourn their terms to any day not beyond the beginning of the first day of the next regular term, it seems to us, makes the decision of the court in that case very persuasive in the determination of the point now under consideration as to the effect of the adjournment of the Stoddard Circuit Court from March 20th to June 16, 1884, and we think calls for the application of the principles therein stated to the facts of this case. After the circuit court had adjourned from March 20, 1884, up to June 16, 1884, we are clearly of the opinion that it could not make an order of publication during the interval between those dates, and if the defendants’ contention be true, the clerk of that court was without power to make any order of publication in any case for a period of eighty-eight days. We think independently of the Act of 1883 that after the adjournment on the 20th of March, there'was a vacation until the 16th of June, when the court reconvened according to its adjournment, and such we think has been the construction placed upon section 3494, Revised Statutes 1879, and the subsequent revisions to the same effect by the bar of this State and the courts generally. And in our opinion this has been the proper construction of that provision of our law in regard to the power of the clerk in vacation to make orders of publication to non-residents or absentees. A different construction would in many cases result in a needless delay in the commencement of actions and would be unreasonable. The Act of March 15, 1883, page 111, and the subsequent Act of 1885 were clearly enacted to set this question at rest forever, and to confirm the prevailing view taken by the courts -and the bar of this State as to what constituted a vacation within the meaning of the several acts of this State in which a judge or clerk in vacation were empowered to do certain acts. The Act of 1883 was clearly in force at the time the suit was brought to enforce the lien of the State for the delinquent taxes of the year 1882, and while by its terms it refers to any act authorized to be done by or any power given • to a court or a judge in vacation and provides that the words “in vacation” shall be construed to include any- adjournment of court for more than one day, it is hard to understand how if the court ¡was in vacation for the purpose of permitting the judge to do an act authorized to be done by him in vacation, why the court would not also be in vacation so as to authorize the clerk also to act, even prior to the Act of 1885, which included the clerks specifically.

In our opinion the clerk of the Stoddard Circuit Court was authorized to make an order of publication in that suit, for the reason that there was a vacation of the circuit court of that county at the time he made the same.

II. This brings us to the other contention, that the affidavit itself which was filed with the clerk and which has been set out in the statement of the case was utterly insufficient to sustain the order of publication.

The objection that the affidavit was not made in this case but in.a justice’s court is wholly untenable. The affidavit was made before a notary public who was fully authorized to administer the same and stated the essential fact that James Keener the .defendant was a non-resident of the State. The fact that it was first filed before Moses Harvey, a justice of the peace, did not affect its validity. As said by defendant, the justice had no jurisdiction of the suit, as was decided by this court in State ex rel. v. Hopkins, 87 Mo. 519. Presumably discovering that the justice had no jurisdiction the plaintiff withdrew it and filed it with his petition in the tax suit and it was none the less an affidavit filed with the petition at the commencement of the suit, than if it had never been filed with the justice, and had been originally filed with the clerk of the circuit court. Every presumption will be indulged that the affidavit was withdrawn from the justice by his consent, but as he had no jurisdiction of the case he could not have prevented the dismissal of the cause and the withdrawal of the petition and affidavit.

III. As to the other insistence, that because the affidavit was made on the 4th of June, 1884, and was not filed until the 12th of June, 1884, in the circuit court, the circuit court obtained no jurisdiction, it is to be said that the statute should be given a reasonable construction. In a direct proceeding in Campbell v. McCahan, 41 Ill. 45, it was held that an affidavit made twenty' days before the filing of the bill was not a reasonable time and failed to confer jurisdiction. In Armstrong v. Middlestadt, 22 Neb. 711, an affidavit made one day and filed the next, was field sufficient, but tfie court remarked, obiter, that “in sustaining tfie affidavit we do not wisfi to go beyond tfie facts of this case and to bold an affidavit made several days before tfie commencement of an action would be sustained.” In New York Baptist Union v. Atwell, 95 Mich. 239, a drastic construction was given tfie statute, and “where an affidavit for publication was made on tfie 15tfi of tfie month, and tfie order of publication was not made until tfie 20tfi,” it was field tfie service was insufficient, in a collateral suit in ejectment, to confer jurisdiction. On tfie other hand, this court, in Graham v. Bradbury, 7 Mo. 281, field that “the objection that there was an interval of nine or ten days betwixt the making of tfie affidavit and the issuing of tfie writ and tfie state of facts might have changed during tfie interval,” was untenable. Judge Scott said: ‘ ‘ Tfie party must take advantage of this by plea. . . . Some time must necessarily in many cases intervene between tfie making of tfie affidavit and tfie issuing of tfie writ.” In view of tfie various utterances on this subject, our opinion is that although there was a delay of eight days between tfie making of tfie affidavit and tfie filing of tfie suit, it did not render the order of publication void. If the making of tfie affidavit and the filing of tfie petition must both occur on tfie same day, it would in actual practice work great inconvenience in many instances, and in some great injustice. We can conceive of cases where tfie delay would be so great that it would be wholly unreasonable and should be field ground for holding tfie order insufficient, but we are unwilling to say that tfie delay of seven or eight days in this case rendered tfie whole proceeding void, and this is tfie view taken by Yan Fleet on Collateral Attack on Judicial Proceedings, section 330. Our courts have not, we think, applied the drastic rule adopted by the Michigan court on this subject. It follows that in our opinion the judgment cannot he held void because the order of publication was not based upon a sufficient affidavit.

As the sheriff’s deed was based upon a valid judgment and the plaintiff has acquired by regular mesne conveyances the title of defendants’ ancestor, James Keener, the circuit court erred in decreeing title in defendants, as his heirs at law, and accordingly the decree of the circuit court is reversed and the cause remanded with directions to enter a decree vesting the title in plaintiff.

Burgess and Box, JJ., concur.