author: RAILEY, C.

text:
    E. T. STIMSON v. CATHEDRAL MINING AND SMELTING COMPANY et al., Plaintiffs in Error.
    Division One,
    March 2, 1915.
    1. ORDER TO PRODUCE DOCUMENTS: Insufficient Record Entry: Non-Compliance: Striking Out Answer: Amendment. Nunc pro Tunc. Plaintiff’s petition to have records in the possession of the defendants produced for inspeotion was sustained, and the clerk’s entry in the record recited simply that the defendants should on or before a certain date produce for the plaintiff’s inspection such hooks and papers hearing on the issues as should he designated by the plaintiff. After the date specified, on the plaintiff’s motion, the defendants’ answer was stricken out for failure to comply with the order to produce, and judgment was given for the plaintiff, the defendants not appearing. The defendants having taken the case up on a writ of error, the plaintiff asked for an extension of time in order to have the record entry of the order to produce corrected nunc pro tunc, in accordance with alleged minutes in the docket of the trial judge, so that it should specify the books and papers that were ordered to be produced. Held, that the cause be remanded, with directions to set aside the judgment and reinstate the answer, since the order entered of record by the clerk was not sufficient to serve as a basis for striking out the answer, and there was no showing that the defendants had knowledge of any memoranda in the trial judge’s docket or were ever requested to produce any documents for inspection.
    2. JUDGMENT: Record Entry: Presumptions: Judge’s Docket., The judgment appearing of record is presumptively the judgment of the court, whi'ch is not to be sought, except for purposes of amendment, in the minutes of the judge’s docket, and until amendment is made the public can act upon no means of infor-, mation other than the official records.
    3. AMENDMENTS: When Made. Under the Statutes of Missouri (R. S. 1909, secs. 1848 and 1851?) amendments of the record are to be made only in furtherance of justice, and on such terms as may be just.
    Error to Jasper Circuit Court. — Eon. D. E. Blair, Judge.
    Reversed and remanded (with directions).

      Boyle & Priest, T. M. Pierce and Robert E. Maloney for plaintiffs in error.
    (1) The order of the court striking the answer of the defendants from the files because of failure to produce certain books and papers for inspection was void and not authorized by law, since it does not appear that the defendants had refused at any time to furnish books and papers “designated by the plaintiff, ’ ’ and because section 1948, R. S. 1909, upon- the authority of which such order was made, does not authorize a pleading to be stricken from the files, and furthermore because said statute is unconstitutional and inoperative, since it violates section 30 of article 2 of the Constitution of Missouri, which forbids any person to be deprived of property without due process of la.w, and also violates section 1 of article 14 of the Amendments to the Constitution of the United States, which guarantees that property shall not be taken without due process of law. Hovey v. Elliott, 167 U. S. 409, 42 L. Ed. 215. (2) No time should be granted for obtaining mmc pro kmc amendment. Nisdenberger v. Campbell, 11 Mo. 362; Rohrer v. Oder, 124 Mo. 33; Arendondo v. Arendondo, 133 U. S. 377.

      McReyno.lds & Halliburton for defendant in error.
    (1) The action of the court in striking out the answer of the defendants Cathedral Mining Company, G. W. Hoadley, Edward K. Hill, and Harry W. Blair is authorized by the statute. Sec. 1947, R. S. 1909. (2) Conceding for the purpose of argument that the order made by the circuit court is insufficient and violates some'right of the plaintiffs in error, there is sufficient in the record and files of the court to authorize an entry mmc pro time, that is to say, the motion filed by the defendant in error specifically sets forth the' books, papers and documents required by the plaintiff in the case below, and the judge’s docket shows that the motion filed was sustained, and time set for compliance with the order of the court. Sections 1851 and 1865, R. S. 1909, are sufficient to authorize such mmc pro tunc entries, and it was expressly decided in Piarían v. Moore, 132 Mo. 491, that the court had power to amend pending appeal. This court has heretofore made orders granting leave to a party to apply nisi for a nunc pro tunc order. Adams v. Gossom, 228 Mo. 571. In fact, has made an order on the trial court if it could from competent evidence make an amendment of the record so that the case could be heard on its merits in this court. Ross v. Railroad, 141 Mo. 393; Gamble v. Daugherty, 71 Mo. 601; Crawford v. Railroad, 171 Mo. 75.
   RAILEY, C.

Plaintiff sued defendants in division two of the Jasper Circuit Court, on January lip 1910. The purpose of said action was to obtain a judgment against the Cathedral Mining and Smelting Company, on bonds amounting to $10,000, with interest on certain bonds executed by said mining company and secured by a deed of trust on certain property, and to foreclose the equity of redemption of said company, Edward K. Hill, Howard Gray, Empire Trust Company, and Harry W. Blair, and to order said property sold. The petition alleges that plaintiff is informed that Edward K. Hill, George W. Hoadley, A. H. Hoadley, E. J. Bennett, G. S. Graham, F. F. Carpenter, P. Reimer, A. E. Oldham, V. Dart, and P. McKenna are claiming to be holders and owners of part of said series of bonds.

It is charged in the petition that if any of said parties hold any of said bonds, they obtained possession of same without paying any consideration therefor ; that no interest had ever been paid on any of said bonds; that said Cathedral Mining and Smelting Company was insolvent at time of trial, and had been insolvent for more than two years prior thereto; that said smelting company for two years or more prior to the date of trial had not attempted to do any business, had not elected any officers or kept any office open, and had abandoned its property and business. The prayer asks for general relief.

All of the defendants appeared. The mirting company and defendant Blair first filed a demurrer to said petition and afterwards withdrew the same. On October 1, 1910, all of the defendants filed a joint answer, which was signed by Perkins and Blair, and H. W. Currey, attorney for defendants. Said answer denied the alleged equities of plaintiff, and averred that the bonds were acquired by the holders in good faith and for a valuable consideration. It is alleged in the answer that the mortgage referred to in petition could not be foreclosed, because the holders of three-fourths of the amount of the oustanding unpaid bonds and coupons had not requested the trustees to foreclose, as provided in said deed of trust. The answer further alleged that plaintiff had made .no demand upon the trustees for a foreclosure, and that three-fourths of the holders of said bonds in amount had not agreed to the foreclosure of said mortgage; that plaintiff could not maintain his suit until such conditions of the deed of trust had been met.

On November 22,1910, plaintiff filed a petition for an order requiring defendants to produce certain papers to be inspected and copied, as follows:

“ (1) The articles of association of the Cathedral Mining Compay. (2) The books of the Cathedral Mining Company showing the proceedings of the stockholders of said company and of the directors of said company. (3) The stock book of the Cathedral Mining Company, showing the issue of stock, to whom issued and who the present stockholders are. (4) The record showing the sale of bonds of said company, to whom sold and payments received therefor. (5) The books and records of the Chapel Mining Company, showing the minutgs of the proceedings of the board of directors and of the stockholders of said Chapel Mining Company. (6) The stock book of said Chapel Mining Company, showing who were the stockholders of said Chapel Mining Company. (7) The articles of association of the Mission Mining Company, together •with the records showing who were the stockholders in the Mission Mining Company, and showing the proceedings of the board of directors and of the stockholders of said Mission Mining Company. (8) The articles of association of the Vestry Mining Company and the records showing who were the stockholders of the Vestry Mining Company. (9) The records showing the proceedings of the board of directors and the stockholders of the Vestry Mining Company. •

“Plaintiff shows to the court that the Cathedral Mining Company, the Mission Mining Company and the Vestry Mining Company were corporations organized outside of this State, and that their offices and their records were all kept outside of this State, and that the said George W. JEIoadley, Edward K. Hill, and possibly some of the other defendants herein, were stockholders -and managers of said companies.

“Plaintiff says that to prepare his case properly for trial and that justice may be done between the parties herein, it is absolutely necessary that the plaintiff, prior to announcing ready for trial, should have a chance to inspect said records, make copies of such as may be necessary, and that they should be where they can be used as evidence in the trial of this cause. ’ ’

This petition was verified by one of plaintiff’s counsel.

On November 26, 1910, the following record entry appears, in respect to said petition:

“Now comes on for hearing plaintiff’s petition requiring defendants to produce certain books and papers for plaintiff’s inspection, heretofore filed herein; said petition is taken up, and being seen, heard and fully understood by the court, the same is sustained.

“It is therefore ordered by the court that said defendants be, and they are hereby required to produce, for plaintiff’s-inspection, on or before the second day of January, 1911, such books and papers bearing upon the issues in this cause as shall be designated by the plaintiff. ’ ’

On February 20, 1911, plaintiff filed a motion to strike out the answer of said defendants, as follows:

“Now comes the plaintiff and moves the court to strike out the answer of the Cathedral Mining Company, G. W. Hoadley, Edward K. Hill and Harry W. Blair, defendants herein, for the following reasons, to-wit: Because this court at its last term, to-wit, the November term, 1910, made cm order of record in this cause, after due notice to said defendants, requiring them to produce for the inspection of the plaintiff in preparing his case for trial, certain books and papers in the possession and under the control of said defendants, on or before the 2nd day of January, 1911, and the defendants have wholly neglected, failed and refused to produce said books and papers, or any part thereof, by reason of which their answer should be stricken from the files in this cause.”

On February 25, 1911, the following record entry appears:

“Now, at this day, the motion heretofore filed by the plaintiff to strike out the answer of defendants, Cathedral Mining & Smelting Company, G-. W. Hoadley, Edward K. Hill, and Harry W. Blair, comes on for hearing. Plaintiff appears by his attorneys, McReynolds & Halliburton, and the defendants appear not in person, and their attorney of record, although duly served with a copy of said motion, appears not; and it appearing to the court that said motion was filed in this court on the first day of this term and was regularly set for hearing today,, and that said defendants’ attorney of record- had notice of such setting and was in court in person this day, and his attention called to said motion and its pendency for hearing, and plaintiff’s attorneys demanding a hearing on said motion, all and singular the matters therein are submitted to the court; and the court after hearing the evidence and examining the files and records in this cause, doth find that at the November term, 191Ó, of this court, on petition and application of plaintiff, and after notice to the defendants and their appearance to said petition and application by their attorney of record, the court made an order of record requiring said defendants to produce for the inspection of plaintiff in preparing his case for trial certain books and papers described in said order in the possession and under the control of the said defendants on or before January 2, 1911, and it further appearing to the court that defendants have wholly failed to comply with said order in any respect, and have failed and refused to offer any reason or excuse for failing to comply with said order of this court:

“It is ordered and adjudged by the court that the answer of the defendants, Cathedral Mining & Smelting Company, Gr. W. Hoadley, Edward K. Hill and Harry "W. Blair, be and is stricken out and from the files in this cause. And it is further ordered and adjudged by the court that the allégations of the plaintiff’s petition be taken as confessed by said defendants, and that the costs of this motion and said application be taxed to said defendants. ’ ’

The record entry, as written by the clerk, sustaining plaintiff’s petition for the production of certain papers, etc., was a part of the proceedings of the November term, 1910, of said court. Plaintiff’s motion to strike out the answer of defendants was filed at the February term, 1911, of said court, and said motion was sustained during the same term. On the 6th of June, 1911, and during the June term of said court, the above cause was reached for trial, and the court, after hearing plaintiff’s evidence, etc., found the issues in favor of plaintiff.

“And the court further finds that the defendant Cathedral Mining & Smelting Company is indebted to the plaintiff on account of the debt in said deed of trust described in the sum of twelve thousand eight hundred ninety-seven and 50-100 dollars ($12,897.50).

“It is therefore ordered and adjudged that the equity of redemption of the defendants in said premises and property be foreclosed, and that plaintiff recover of said defendant Cathedral Mining & Smelting Company the said sum of $12,897.50, the debt aforesaid found to be due, together with his costs to be levied on the real and personal property above described. And it is further adjudged that if the said mortgaged property be not sufficient .to satisfy said debt and costs, the residue of said debt and costs be levied on tbe other goods and chattels, lands and tenements of said defendant Cathedral Mining & Smelting Company. ’ ’

Upon the 5th of December, 1911, the writ of error was sued out of this court to division two of the Jasper Circuit Court, directing that the record and proceedings in the above cause in said court be certified here for review. A full and complete transcript of the proceedings had in the said circuit court has been filed here, and plaintiffs in error are seeking to have the order of said circuit court striking out their answer, and the judgment rendered in said cause, set aside and for naught held.

Plaintiff filed application during the present term of this court, asking for ah extension of time, in order that he might have the record of the circuit court corrected by nunc pro tunc entry, so as to show what he claims to have been the order made by said circuit court upon defendants herein, relating to the production of books, papers, etc. The case therefore stands for review here upon the application of plaintiff for time to correct the record aforesaid, and upon the contention of defendants that on the record the trial court erred in sustaining plaintiff’s motion to strike out the answer of defendants, and in entering judgment in behalf of plaintiff after said answer was stricken out.

I. We are requested by defendant in error to grant him an extension of time, in order that he may present to the trial court a motion to correct the record entry made by the clerk of said court in respect to an order upon defendants to produce certain books and papers. Leaving out of consideration, for the present, the terms upon which it may be done, we are disposed to treat the petition of plaintiff, filed in the court below for the production of books and papers, as sufficient in form and substance to authorize the court to sustain the same. It may be conceded for the purposes of the case that the entry made by the trial judge upon his docket, taken in connection with the above petition for the production of papers, would furnish sufficient data upon which a mmc pro tunc entry might be made, so as to have the record entry of the clerk upon this subject corrected and made to conform to the order of the court calling for the production of such books, papers, etc., which were specified in said petition.

II. It may likewise be conceded for the purposes of the present controversy that if the entry made by the clerk upon the record of said court had fully described the different documents, books, papers, etc., specified in said petition, and had recited in said entry that said defendants were required by the court to produce the same for the inspection, etc., of plaintiff and his counsel, at the time and place designated, then an intentional and wilful refusal of said defendants, upon being served with a copy of such order, to comply with same, would furnish a sufficient basis for striking out the answer.

III. It may be also conceded, in the disposition of the above question, that the record shows that defendants’ counsel was present at the hearing of said petition for the production of books, papers, etc., and that said attorney heard the court announce that said petition would be sustained, etc.

IV. The record entry of said court as actually written by the clerk, without caption, reads as follows:

“Now comes on for hearing plaintiff’s petition requiring defendants' to produce certain books and papers for plaintiff’s inspection, heretofore filed herein; said petition is taken up, and being seen, heard and fully understood by the court, the same is sustained. It is therefore ordered by the court that said defendants be, and they are hereby required to produce, for plaintiff’s inspection, on or before the second day of January, 1911, such books and papers bearing upon the issues in this cause as shall be designated by the plaintiff.”

There is nothing in the record before us to indicate that counsel for defendants ever saw or read the memoranda made by the trial judge upon his docket, in reference to the production of books, papers, etc., in said cause. There is nothing' to indicate that any particular place was specified for the production of said documents, nor is there before us any evidence tending to show that said order, as made by the clerk, was ever served upon any of said defendants, or that any of the latter were requested, after the sustaining of said petition, to produce said documents, or any of them, for the inspection of plaintiff or his counsel.

The above order is entirely too broad and indefinite in its terms. It gave the plaintiff' a roving commission to call for any books or papers which he might consider as bearing upon the case, whether called for in the above petition or not. The law requires the petition to specify the documents called, for, and the record entry, sustaining a motion of this character, should set out with particularity the same documents described in the petition, if the latter is siostained. In view of the foregoing, we have no hesitation in reaching the conclusion that the record entry, as made by the clerk, was wholly insufficient, to be used as a basis upon which to predicate an order for the striking out of the answer of said defendants.

In plaintiff’s application for a continuance of the case, we find the following: “That J. W. Halliburton, attorney for defendant in error, plaintiff in the trial court, relied upon said clerk in making such records as above. That said J. W. Halliburton has had sole charge of this case on behalf of defendant- in error, plaintiff below, and did not know or learn of the entry so made by said clerk not being in conformity to the order of the court, until the record of plaintiff in error was served upon him as attorney of record for defendant in error, which was about the 12th of December, 1914.”

In tbe absence of any evidence to tbe contrary, it is fair to assume tbat tbe defendants, whose answer was stricken ont at tbe instance of plaintiff, likewise ‘‘relied upon said clerk in making such records as above.” In other words, if tbe able counsel of plaintiff, whose duty it was to see tbat a proper order was made before an answer could be stricken out, bad tbe right to rely upon tbe clerk in tbe performance of bis duty, we are at a loss to know why counsel for tbe defendants were not justified in indulging tbe same reliance. It is made tbe duty of tbe circuit clerk, by tbe laws of this State, to enter upon tbe record tbe judgment and proceedings of tbe circuit court. These records, when thus written, are said to impart absolute-verity. Counsel for defendants, when confronted with tbe entry made by tbe clerk in this case, were required to determine at their peril whether tbe order as made-was sufficient to justify tbe trial court in striking out tibe answer for failure to comply with same. If, bow-', ever, tbe entry as made was not sufficient to warrant tbe court in striking out tbe defendants’ answer, then tbe latter were not guilty of contempt for failing to comply with a void order.

Section 3851, Revised Statutes 1909, provides tbat: “Full entries of tbe orders and proceedings of all-courts of record of each day shall be read in open court' on tbe morning of tbe succeeding day, except on tbe last day of tbe term, when tbe minutes shall be read and signed by tbe judge at tbe rising of tbe court.”

Section 3859 of tbe same statutes provides that:' “It shall be the special duty of every judge of a court of record to examine into and superintend tbe manner' in which, the rolls and records of the court are made up and kept; ... to require . . . ' that the duties of the clerks he performed according to law.”

Section 2685, Revised Statutes 1909, provides, that: “Every clerk shall recoi’d the judgments, rules, orders and other proceedings of the court, and make a complete alphabetical index thereto.”

With the f oregoing duty devolving,, by operation of law, upon the trial judge and the clerk of his court, were not the defendants justified in assuming, as did the plaintiff, that the clerk had written the record entry, under consideration here, in accordance with the directions of the court? Defendants, although served with a copy of plaintiff’s motion to strike out their answer, failed to appear at the hearing of said motion by counsel or otherwise. Counsel for plaintiff must have been very strongly impressed with the idea, while trying this motion to strike out the answer, that the clerk had properly performed his duty, for there is nothing in the record to indicate that upon the hearing of said motion the clerk’s record entry under consideration was ever read to the court as evidence in support of the motion to strike out said .answer. On the contrary, we are justified in assuming that neither counsel for the plaintiff, nor the trial judge, upon the hearing of said motion, read or saw said record entry made by the clerk. This must be true, as plaintiff’s counsel never discovered the mistake, as shown in the above quotation, until December 12, 1914, when the abstract of record in this cause was served upon him. The motion of plaintiff to strike out the answer of defendants was therefore based solely upon a void order, made and entered of record by the clerk, as demonstrated from the foregoing facts. This stands, to reason, as plaintiff’s counsel relied upon the correctness of the clerk’s entry, and hence could not have intended to predicate an order striking out the answer upon the minutes made by the triad judge upon his docket, which were never entered upon the- eonrt record required by law to be kept by the clerk.

In this view of the question, it clearly appears that defendants were never charged with having, violated the minutes made by the trial judge in his docket, nor does it appear, from the record, that defendants’ counsel had any actual knowledge that any such entries were on said docket. As a matter of fact, the defendants were proceeded against under a void order, and their answer stricken from the files under and pursuant to such order. In our opinion, it would be a travesty upon the law to now allow the record entry to be corrected in accordance with the memoranda on the docket of the court, without restoring the defendants to the same position which they occupied before said answer was stricken out.

While section 1947, Revised Statutes 1909, on which plaintiff relied' in having the trial court strike out said answer, has been upon our statutes for more than a half century, we have been unable to find a case where a pleading has been stricken out under such circumstances as those disclosed by the record in this cause. The statute affords a harsh remedy, and should only be applied when the parties complained of have been guilty of a wilful or intentional refusal to comply with a valid order made by the court.

Y. We are not authorized to inquire into the truth or falsity of the matters pleaded in the answer of defendants, but if the facts pleaded therein be taken as true, they present an insurmountable difficulty in the way of recovery upon the part of plaintiff. In other words, if the facts as disclosed by the answer be taken as true, the plaintiff was not entitled to a decree in the cause. It would therefore be a great injustice to affirm the action of the lower court, in cutting off the defendants in their right to assert the defenses which they have exhibited in their answer, when the motion to strike out has been based upon a void order of said-court. In the absence of evidence tending to show actual knowledge upon the part of defendants or their attorneys, as to the alleged entry upon the judge’s docket, it cannot be presumed that they were guilty of wrongdoing. On the contrary, “in all cases, . . . the judgment appearing of record is presumptively the judgment of the court.” [Atkinson v. Railroad, 81 Mo. l. c. 54; Belkin v. Rhodes, 76 Mo. 643; Missouri, Kansas & Eastern R. R. Co. v. Holschlag, 144 Mo. l. c. 256-7; Glover v. Ins. Co., 130 Mo. 173; McCormick v. Wheeler, Mellick & Co., 36 Ill. l. c. 120.]

We are strongly impressed with the clear and forceful language used by Mr. Justice Lawrence, in the McCormick case, supra, at page 120, where he was discussing mmc pro tunc entries, and said:

“For what is the judgment of a court? It does not reside, unspoken and unwritten, in the breast of the judge. It is not to be sought in the minutes or memoranda which the judge makes upon his own docket, and which the law does not require him to make, but which are merely kept by him for his own convenience, and to enable him to see that the clerk accurately makes up the record. These minutes, it is true, are'a proper means of amending a record, but until the amendment is made, the public can act upon no other means of information than the official records of the court, as kept by an officer appointed by the law for that purpose. How often have this and other courts expressed the maxim, that ‘a record imports absolute verity?’ ”

The language just quoted covers the situation in this State. As heretofore shown, it is the absolute duty of the clerk to make his record properly recite- the judgment and proceedings of the court, which are required to be entered of record. We are not aware of any law in this jurisdiction which directs the trial judge to keep a record of the proceedings in his court. The entries made by him are entered on his docket for the purpose of keeping a check upon the clerk, and for the purpose of enabling him to amend the record in case of oversight or mistake on the part of the clerk. As long as the record entry made by the clerk remains unamended, it will be presumed to properly recite the judgment or proceedings of the court, and a defendant cannot be legally declared in contempt for failure to comply with the memoranda made by the trial judge, when he has been proceeded against and his answer stricken out for the failure to comply with a nonenforeeable order entered by the clerk.

The case of Atkinson v. Railroad, 81 Mo. 52, and following, is strongly illustrative of the foregoing contention. Defendant had appealed from a judgment by default in the justice’s court, and its counsel did not desire to enter the appearance of said railroad company in the circuit court. After the case reached the circuit court, a continuance of the cause was had, and thereafter, when the defendant filed special motion to dismiss the cause for want of jurisdiction, defendant’s counsel was confronted with the record entry made by the clerk, showing that the cause at the preceding term had been continued by consent. Counsel for the company thereupon withdrew its motion to dismiss, and asked the court to enter a nimc pro time order correcting the record entry made by the clerk. The minutes kept by the clerk and the minutes made by the trial judge on his docket both plainly recited that the cause was continued on the application and at the cost of plaintiff, but neither the minutes of the clerk nor the docket of the trial judge said anything about the continuance being had by consent. The railway company attempted to show by affidavit that no consent was obtained and that the railway company was not represented in court. An appeal was taken and the case brought to this court. Commissioner Ewing, in behalf of the court, held, that, as the entry made by the clerk was not in conflict with either the mimotes formerly made by the clerk or the docket entry of the judge, it could not be overturned after the lapse of the term.

The Atkinson case, supra, presents a forceful illustration of the length to which this court has gone in upholding the record entries made by a clerk of a court of record. As heretofore suggested, the defendants and their counsel were justified in ignoring the order made and entered of record by the clerk, and hence the answer of said defendant was improperly stricken out by the trial court.

VI. Where injustice would be done, the court should not authorize an amendment of the record, unless the defendants were restored to the position which they occupied at the time their answer was stricken out. Section 1848, Revised Statutes 1909, provides that, “The court may, at any time before final judgment, in furtherance of justice, and on such terms as may be proper, amend any record, pleading, process, entry, etc., . . .” Section 1851, Revised Statutes 1909, also provides that, “After final judgment rendered in any cause, the court may, in furtherance of justice; and on such terms as may be just, amend in affirmance of such judgment any record, pleading, process, entries, . . .”

It will be observed that our statutes relating to amendments proceed on the theory that no injustice shall be done under such circumstances as those disclosed by the record here. To the same effect are the following cases: Neidenberger v. Campbell, 11 Mo. l. c. 362; Rohrer v. Oder, 124 Mo. l. c. 32-3; Glover v. Ins. Co., 130 Mo. 173; Cuebas v. Cuebas, 223 U. S. l. c. 389.

In the Neidenberger case, supra, Judge Napton, in discussing this question, said: ‘ ‘ That an amendment would have been proper under ordinary circumstances, may be conceded; but the court refused to permit the judgment hy default to be set aside, either at the instance of the defendant, who was a mere tenant, or of the landlord, who desired to defend the action and had not been notified of its pendency, prior to the judgment by default. Amendments are to be alloived for the furtherance of justice. Where one party has taken a false step and seeks to retrace it, he should not be allowed to do so, unless his adversary, who has been guilty of a similar laches, be allowed the same privilege . . .We think the amendment allowed by the court should not have been permitted, unless the defendant had also been allowed to set aside the judgment by default, and have the case tried on its merits.”

In the case before us, counsel for plaintiff implicitly relied upon the record made by the clerk, and went to the extent of having the court strike out the answer of defendant, based on the void order thus made by the clerk. The plaintiff, through his counsel, now seeks to have the record made by the clerk corrected, so as to convict the defendants of having violated an order ufhich loas not upon the record at the time their ansioer ioas stricken out.

In the Glover case, supra, the trial court made an order striking out the defendant’s demurrer and denying to it a further defense, for the alleged reason that it was in contempt for not complying with the order of the court to produce written instruments for inspection. This court reversed the dicision of Judge Yalliant in the court below, and held that in the absence of any evidence upon the subject, the law would presume that defendant was actuated by proper motives in making its return to the order of the court in regard to the production of the documents called for. The trial court, in the case just cited, indulged in caustic criticism of the action of the defendant in its return, and intimated that it was trifling with the court. Judge Gantt, in behalf of this court, reached a different conclusion, and reversed the canse on account of the striking ont of defendant’s demurrer to plaintiff’s petition.

In the case of Cuebas v. Cuebas, 223 U. S. 389, Mr. Justice Ltjrton said: “That the hill was subsequently amended so as to confer jurisdiction against Cuebas as sole defendant, by dismissing the hill against the other two defendants and striking out the prayer of the bill that any and every claim, interest, or incumbrance be forever barred and cut off, did not justify a decree based upon the order pro confesso made prior thereto. Upon such amendment being made, so completely changing the character of the bill, creating a jurisdiction which had not theretofore existed, the court should have set aside the default and given time to defend.”

We have carefully considered all the questions involved herein, and deem it our plain duty to reverse and remand this cause with directions to the lower court to set aside the order striking out defendants ’ answer; to set aside the judgment entered in said cause; and to restore defendants to the same position which they occupied in said court at the time of the filing of plaintiff’s motion to strike out said answer.

Brown, C., concurs.

' PER CURIAM:

The foregoing opinion of Railey, C., is adopted as the opinion of the court.

All the judges concurs.


source: Caselaw Access Project

author: WOODSON, J.

license: Public Domain

text:
    LYDIA A. WHITTAKER et al., Appellants, v. JAMES W. LEWIS et al.
    Division One,
    March 2, 1915.
    CONVEYANCE: Deed by Entirety: Wife’s Inherited Lands. Where a husband and wife agreed and contracted with each other, after he had bought the interests of certain heirs in the land inherited from her father, that it would be conveyed to them as tenants by the entirety, to be owned by the survivor, and a deed was drawn conveying the interests which he had purchased, but by mistake of the scrivener the interest she had inherited was not included, the deed will be reformed to express the real contract and to include her omitted interests, and her brothers and sisters will be held, after her death, to have no inheritable interest in said land as against her surviving husband.
    Appeal from Marion Circuit Court.- — Ron. William T. Ragland, Judge.
    Affirmed.

      Eby & Eulse for appellants.
    (1) The pleadings and the evidence, and the findings of the court, show a voluntary partition as between Mary S. Lewis (under whom plaintiffs claim) and the other heirs of Benjamin M. Jones, deceased. Under this theory, the following authorities govern the case : Whitsett v. Womack, 159 Mo. 14; Snyder v. Elliott, 171 Mo. 362; Propes v. Propes, 171 Mo. 407; Sharp v. Sharp, 185 Mo. 529. (2) A deed conveying to a husband- and wife her share of property in which she had an undivided interest by inheritance will vest in him no greater interest than if the deed were made to her alone. Propes v. Propes, 171 Mo. 417. (3) Two or more tenants in common (under parole or voluntary partition) may take shares as tenants in common; and it is not essential to such partition that the parceners join therein at the same time. 21 Am. & Eng. Ency. Law (2 Ed.), 1140j; Sutton v. Porter. 119 Mo. 100.

      F. E. McCullough for respondents.
    (1) James W. Lewis and his wife, Mary S. Lewis, had a perfect legal right to enter into the contract and agreement pleaded in the answer, and proven in evidence, to-wit: “That they, each, in consideration of the exchange of interests in said lands, would cause to be conveyed to this defendant, James W. Lewis, and his wife, Mary S. Lewis, jointly, as tenants by the entirety, all the said lands described in the petition, which ■either of them then owned or might thereafter acquire by purchase under the consideration above stated, so that in the event of the death of either, this defendant ■or of his said wife, Mary S. Lewis, then the survivor ■of them would become the owner in fee simple of the entire estate in all said lands described in the petition.” The Married Woman’s Act was enacted in 1889 and this transaction occurred in the fall of 1893, ■and all titles were acquired after 1891. Sec. 6864,,R. S. 1889, now Sec. 8304,*R. S. 1909; Grimes v. Reynolds, .184 Mo. 679; Rice, Stix & Co. v. Sally, 176 Mo. 107; Bank v. Hageluken, 165 Mo. 443; O’Day v. O’Day, 194 Mo. 598. (2) Plaintiffs had received defendants money and made their solemn warranty deed to him and his wife, for seven-eights interest in all said lands, ■and Sidney J. Jones had afterwards conveyed the •other one-eighth interest to defendant and his wife. These acts certainly estopped plaintiffs from claiming the legal title. They cannot recover on the weakness 'of the title in defendant but must hold the legal title, Nalle v. Thompson, 173 Mo. 595; Lajoye v. Primm, 3 Mo. 529; Cottle v. Sydnor, 10 Mo. 763; Hempstead v. Easton, 33 Mo. 142. (3) The evidence in this case shows a specific contract to create a tenancy by the entirety; a well meant effort to carry out that contract and the effect of such action was to create same. Frost v. Frost, 200 Mo. 474, is based upon a contract to create an entirety. Craig v. Bradley, 153 Mo. App. 586; Johnson v. Johnson, 173 Mo. 91. (4) In,equity, where the necessary parties for a complete ■disposition of the cause are before the court, and such a disposition can be made it is the duty of the court to do so. Trimble v. Wollman, 71 Mo. App. 467. (5) If the warranty deeds, in question, failed to vest the ■entire estate in the lands described in the petition, in the plaintiff and his wife, as tenants by the entirety, it was a mistake of fact, in the making of the deed, and equity will interpose for the relief of the purchaser or of those claiming under him. Mastín v. Halley, 61 Mo. 196; Hayden v. Lauffenburger, 157 Mo. 88; Johnson v. United Railways, 247 Mo. 326.
   WOODSON, J.

The plaintiffs brought this suit in ejectment in the circuit court of Marion county, against the defendants, to recover possession of a tract of land, about fifty-seven acres, situate in said county, and particularly described in the petition.

The defendants Dearing and Music were made defendants because the defendant Lewis had executed to them a mortgage on said real estate, to secure the payment of $500, money loaned him by them.

The answer was a general denial, the ten-year Statute of Limitations, and an equitable defense, etc., which is very lengthy, and need not be here set forth, because the nature of it will fully appear from the facts of the case, which are practically undisputed, though not absolutely.

One Benj amine F. Jones, Sr., the common source of title, some time prior to November, 1891, died intestate, seized of two hundred acres of land, a part of which is the land in controversy. He left surviving him seven children and one grandson, the child of a deceased son. Their names were Mary S. Jones, who married James W. Lewis, the principal defendant in the case; Marion L. J ones, Martin V. Jones, William A. Jones, Sidney J. Jones, Ben-j amine F. Jones, Jr., Lydia A. Jones, who marriedWhittaker, and Samuel Jones, the son of George W. Jones, deceased.'

In May, 1908, Mary S. Lewis died intestate, leaving no children or lineal descendants, and her only heirs at law were her husband, James W. Lewis, and her brothers, sister and nephew, before mentioned.

After the death of Benjamine F. Jones, Sr., his seven children and grandson undertook to make a friendly partition of the two hundred acres of land among themselves- — each being entitled to a one-eighth share therein, by executing and interchanging deeds among themselves, conveying to each other or their grantees, their respective shares in said real estate. But in doing so some of the children and the defendant James W. Lewis purchased the interest of some of the other children, and as a part of that general scheme of partition, said Lewis and wife agreed, contracted and undertook to convey her interest and the shares he had so purchased, to themselves as tenants by the entirety.

The facts of the partition and the attempted creation of the estate by the entirety between Lewis and wife were practically as follows:

On November 13, 1891, each of said children owned one undivided one-eighth interest in said land, and on said day William A. Jones and George W. Jones, for value received, by quitclaim deed, duly executed, conveyed their respective interest therein to their brothers, Martin Y. Jones and Benjamine F. Jones, Jr., the plaintiffs. Thereafter, on or about November 28, 1893, the plaintiff, Marion L. Jones, for value received, $450, by deed duly executed, conveyed his undivided interest in the land to the defendant, James W. Lewis; and thereafter in 1891, said Lewis contracted and agreed to purchase for the sum of $114 the interest of Samuel Jones, the grandson. This gave him two undivided shares in the estate, and his wife, Mary S. Lewis, one share therein. Upon this state of facts the defendant James W. Lewis and his-wife, Mary S. Lewis, then and there entered into a contract whereby each agreed with the other, in consideration of the exchanges or conveyances of' said interests in said land between each other, as before memtioned, that they would,, in a proper manner, by a gen-eral warranty deed, canse their respective interests in the land to be conveyed to themselves jointly, as tenants, by the entirety, he having the two shares he had previosnly purchased from Marion L. Jones and Sidney J. Jones, and she having the one share she had inherited from her father.

This contract not only embraced the interest that the defendant Lewis and wife then owned in the land, but included also all the interests that they might thereafter acquire therein by purchase or otherwise from the other heirs or children of Benj. P. Jones, Sr.

At this point the record is not as clear as it might be, yet I believe it is reasonably certain that before the date of the contract mentioned, Lewis and his wife had not only acquired the interest before mentioned, but had also purchased the interests of Marion V. Jones, Benj. P. Jones, Jr., and Lydia A. Jones, in and to the land involved in this suit, some 57 1-7 acres. The deeds conveying these interests to Lewis and wife also contained a covenant of warranty as against the one-eighth interest then owned by Sidney J. Jones, then a minor.

Attending the particular facts of the actual partition they are as follows, as substantially stated by counsel for appellants:

“For the purpose of effecting a voluntary partition of said 200-acre tract as between said Mary S. Lewis and said other heirs, and thereby setting aside to Mary S. Lewis the 25 acres to which she was entitled by inheritance as aforesaid, and representing and being her one-eighth interest in said 200-acre tract; and for the purpose of conveying to said Lewis and wdfe, by purchase, the six-eighths interest of said Martin V. Jones, Benj amine P. Jones and Lydia A. Jones, in and to the land in controversy, and for the purpose of securing to said Lewis and wife the said one-eighth interest then owned by said mionr, Sidney J. Jones, the said Martin V. Jones, did, on November 28, 1893, make and execute their warranty deed, of that date, in which deed, the interest described as therein conveyed, was ‘the undivided seven-eighths interest in’ the land in controversy; said deed containing a general warranty clause. The consideration expressed in said deed was $900, $450 of which sum was paid by said James W. Lewis and $450 of said $900 consideration Mary S. Lewis paid by her ‘deeding to them [grantors] her undivided interest in other lands held by her in common with grantors.”

“On August 22, 1899, said Sidney J. Jones, then being of age, and still owning his said undivided one-eighth interest in said 200-acre tract, executed, together with his wife, a general warranty deed to said James W. Lewis and Mary S. Lewis, to and for ‘all the undivided one-eighth interest in’ the land in controversy.”

William A. Jones, Sidney J. Jones, Ben]. F. Jones, Jr., were made parties plaintiff in the case, yet that was done without their knowledge or consent, and they claim no interest in the lands whatever, and for that reason no further notice will be taken of them in this opinion.

Upon this state of facts counsel for the appellants, Lydia A. (Jones) Whittaker, Marion L. Jones and Martin Y. Jones, contend that Mary S. Lewis was the owner by inheritance, as heir of her father, of seven-sixteenths of the land in controversy, and that she and her husband, the defendant, were the owners, as tenants by the entirety, of the remaining nine-sixteenths interest in the land iñ controversy; and that upon the death of Mary S. Lewis the appellants inherited their proportional parts of the said seven-sixteenths of the land owned by her at the time of her death. While upon the other hand, counsel for respondent, Lewis, insist that in law, equity and good conscience he is the true and real owner of the entire fifty-seven acres, and that while the legal title to three-eighths of said seven-sixteenths may be in them, but in truth and in fact they hold the equitable and beneficial interests therein for use and benefit of him, the respondent.

Practically the undispted evidence shows that the-scrivener who drew the deeds .was not a lawyer, yet he testified that he perfectly understood the agreement between Lewis, the respondent, and his wife; that is,, the interest of each was to be so conveyed that it would create an estate by the entirety between them, and that the survivor should take the entire estate; but being unfamiliar or ignorant of such matters and through mistake and lack of knowledge in such matters, he was of the opinion that the deeds drawn by him. in pursuance to said contract would give to the survivor the entire estate, overlooking the fact that the wife had inherited her interest, or a part of it, from her father, which was not affected by the deeds before-mentioned, and therefore that part of her interest in the land remained in her name, in violation of the understanding and agreement of them regarding the-creation of the estate by the entirety, which upon her death descended to her brothers and sister.

While appellants introduced some evidence tending to show that the interest which the scrivener had in mind and about which he was testifying, was not that of Mrs. Lewis, but that of the minor, Sidney J. Jones, and therefore there was no violation of the contract between Lewis and his wife agreeing to convey their respective interests in such a manner as to create in them an estate by the entirety; yet when the. testimony of the scrivener who drew the deeds, and practically all of the evidence, is considered, no fair-minded, disinterested person can reach any rational conclusion therefrom, except that through misunderstanding, mistake or ignorance of the scrivener and the parties, the seven-sixteenths of the land belonging to Mary S. Lewis was omitted from the deeds in violation of the contract previously mentioned.

The proposition was fully illustrated by the questions and answers propounded to counsel for appellants dnring the oral argument of the cause in this court, which were..substantially as follows: Suppose Jas. W. Lewis, instead of his wife, had died, then who wonld have taken the interest he had purchased and which he had conveyed to them as an estate by the entirety? Promptly the reply was: She of course. Q. And that too, notwithstanding said conveyance was made in pursuance of said contract? A. Certainly. Q. Then why is not the converse of that proposition true ? ’ ’ No answer. “Q. If then, as a legal proposition, if his conveyance was made in pursuance to the contract and through mistake, oversight or ignorance her interest was omitted therefrom, then by parity of reasoning, would not equity reform the deeds and make them express the real meaning of the parties?” No answer.

This is what the pleadings in the case allege, and the evidence shows that those facts are true; and in our opinion the learned chancellor below properly so found, but the court did not go far enough. It simply found for the defendants and against the plaintiffs without reforming the deeds, but as they did not appeal, nor are they here complaining of the form of the judgment, the same in our opinion, should be affirmed; and it is so ordered.

All concur; Bond, J., in result.


author: GRAVES, P. J.

text:
    HARRISON WILLIAMS, Appellant, v. JOHN W. GRUDIER.
    Division One,
    March 2, 1915.
    1. ABSTRACT: Evidence Omitted. An abstract which in places j sets out what -purports to be the substance of the evidence and in others the full questions and answers, will not authorize the court to affirm the judgment, even in an equity case, on the ground that it does not contain all the evidence, where respondent has filed no counter abstract, nor pointed out what evidence has been omitted.
    2. TAX SUIT: Name. The spelling of the name of the defendant with one “1” or two, as “Worrel” or “Worrell,” is not material.
    3. -: Recital in Judgment: Contradicted by Other Record Matter. A judgment in a tax suit is entitled to the presumption that its recitals are correct until they are made to appear to be incorrect by other portions of the judgment roll of equal dignity, and the return of the sheriff is a portion of the judgment roll, of at least equal dignity to the judgment, and the recital in the judgment that the defendant was duly served with process may be impeached by the sheriff’s return showing he was not; and if there is a conflict, the return is entitled to precedent credibility.
    4. -: -: -: Idem Sonans. Neither by the eye nor by the ear are “Francis M. Worrel” and “Franas W. Warroels” idem sonans; and a recital in the judgment of due service of process on “Francis M. Worrel” is completely impeached by the sheriff’s return showing service upon “Franas W. Warroels”; and a judgment by default in the tax suit against Francis M. Worrel, based on a sheriff’s return of service on “Franas W. Warroels,” and a sale in pursuance thereto, are both void.
    5. IDEM SONANS: Francis: Notice to Frances. A notice of sale of the land in a tax suit reciting a default judgment against “Frances M. Worrel,” where the suit was brought and the judgment rendered against “Francis M. Worrel,” is bad, and the doctrine of idem sonans cannot be invoked to cure the mistake. The two words “Francis” and “Frances,” are independent in meaning, the one indicating the masculine gender and the other the feminine; the one indicating a man and the other a woman; and a notice of the sale of the land of a woman can scarcely be said to be a good notice of the sale of the land of a particular man.
    Appeal from Douglas Circuit Court. — Son. John T. Moore, Judge.
    Reversed and remanded (with directions).

      Asbery Burkhead for appellant.
    (1) The petition was filed against Frances M. Worrell, and the summons was issued against Francis Worrell (the former a woman and the latter a man), and the summons was served on a person by the name of Franas W. Warroels, and judgment was taken by default. The court will take judicial notice that “Frances,” defendant named in the petition, is the name of a female, and that “Francis,” the name used in the summons, is the Christian name of a male. Supernant v. People, 110 111. App. 121; Tilson v. State, 29 Kan. 452; Taylor v. Commonwealth, 20 G-ratt. (Va.) 825. “Franas W. Warroels,” the name of the person served with summons by the sheriff, is not idem so-• nms with either “Frances M. Worrell” nor “Francis M. Worrell.” It is not difficult for the attentive ear to distinguish the names when they are pronounced. “Franas” neither sounds like “Frances” nor “Francis. ’’ Neither does “Worrell” sound like “Warroels. ’’ There was no proof tending to show that “Francis M. Worrell,” “Frances M. Worrell” and Franas W. Warroels were one and the same person. If such had been true, it would have been easily proven. The following are not idem sonans: “Archer” and “Ashley,” Bates v. Bank, 7 Ark. 394; “Battles and “Bappel” or “Bappels,” Leach v. State, 132 Ala. 26; “Davies” and “David,” David v. People, 192 111. 176; “Emma’-’ and “Eimily,” Berge v. Berge, 94 Mo. App. 15; “Grafton” and “Graton,” Graton v. Holliday Co., 189 Mo. 322; “Griffin” and “Griffie,” State v. Griffin, 118 Mo. 118; “Jeffery” and “Jeffries,” Marshall v. Jeffries, 16 Fed. Case No. 9128a, Hempst. 299; “Carrey” and “Scarrey,” Scarrey v. Bunker-Culler Co., 233 Mo. 686; “Lane” and “Leane,” Geer v. Mo. Lum. Co., 134 Mo. 85; “Simonson” and “Siemson,” Simonson v. Dolan, 114 Mo. 176. The omission or addition of a final “s” is usually held a fatal variance. Favor v. Robinson, 10 Tex. 206; Seman v. Hill, 7 Ark. 70; Humphries v. Whitten, 17 Ala. 30. (2) It is competent to show by the roll and files and other records that the proper notice was not given, although the judgment recites the contrary. Williams v. Monrse, 125 Mo. 574; Laney v. Garbee, 105 Mo. 355; Enssell v. Grant, 122 Mo. 161; Harness v. Cravens, 126 Mo. 252. Jurisdiction of tbe persons of the defendants, other than the common-law service, can only be acquired by a rigid and strict compliance with the statute. Harness v. Cravens, 126 Mo. 233; Shuck v. Moore, 232 Mo. 649; Kunzi v. Hickman, 243 Mo. 103. And although the judgment may recite that the defendant was duly served, it may be collaterally impeached by the files and rolls and other records. Williams v. Monroe, 125 Mo. 574; Claude v. Pierce City, 86 Mo. 357; Laney v. Garbee, 105 Mo. 355; Bussell v. Grant, 122 Mo. 161; Peust v. Caster, 174 Mo. 287. The rule that all official acts are presumed to have been rightly and regularly done does not obtain in a tax suit, and he who asserts the validity of a tax deed has the burden of showing that all the steps necessary to a good and valid sale were taken. Kries v. Land Co., 121 Mo. App. 184. While a sheriff’s deed regular on its face is prima-facie good, yet it may be overturned, as it is in this case, by the whole record in the tax proceedings, and if the judgment is void the •deed conveys no title. Cummins v. Brown, 181 Mo. 711; Orchard v. Bank, 121 Mo. App. 338. The owner of the res is entitled to notice before his property can be taken from him. Without such notice, and without a day in court to the owner of the res, no judgment in rem is valid. Trust Co. v. Bailroad, 195 Mo. 669.

      O. W. Thornberry and A. H. Buchanan for respondent.
    (1) The decree of the trial court in this case should be sustained for the reason all the evidence is not brought to this court by appellant. This being a case in equity, fhe entire evidence should be before the appellate court. Buie 7 of this court; Pitts v. Pitts, 201 Mo. 356; Geltz v. Anisdem, 125 Mo. App. 592; .Heffernan v. Weir, 99 Mo. App. 301; Nelson v. Hall,. 104 Mo. App. 466. And unless all the evidence is before tbe appellate court, the presumption is tbe trial court committed no error in its finding and tbe appellate court will defer to tbe finding of tbe trial court and affirm. Neither can appellant substitute bis opinion as to wbat is material evidence or wbat is a sufficiency of evidence in lieu of tbe complete evidence. Jackson v. Railroad, 85 Mo. App. 443; Davies v. Boyers, 140' Mo. App. 593. Both parties claim under Francis M. Worrell as common source of title and it is a question only wbetber title passed under the tax sale in 1894. (2) There is no merit in plaintiff’s contention over the spelling of tbe naipe Francis. It would not be a material defect wbetber spelled Francis, Frances or Fransas. Skillman v. Clardy, 255 Mo. 590; Williams, v. Sands, 251 Mo. 147; Maier v. Brock, 222 Mo. 97; Green v. Meyers, 98 Mo. App. 438; Davison v. Life Assn., 166 Mo. App. 625.
   GRAVES, P. J.

Action to quiet title to tbe northwest quarter of section 9, township 25, range 15, in Douglass county, Missouri. Tbe petition is in tbe usual form under tbe statute, with tbe exception that in it tbe plaintiff adds: ‘£ and upon the finding that tbe fee title is in tbe plaintiff, that tbe court set aside and for naught bold tbe following deeds of conveyance unr der which tbe defendant claims, to-wit: (Here follows, a description of a number of deeds in defendant’s chain of title);

Tbe answer is likewise a little out of tbe usual line under tbe statute, and reads:

££Defendant for amended answer to plaintiff’s petition denies each and every allegation therein contained, and for further answer to plaintiff’s petition says that one link of tbe chain of title through which be claims tbe lands in said petition of plaintiff described, to-wit, tbe northwest quarter of section 9., township 25, range 15, in Douglas county, Missouri, is a tax deed, dated the 27th day of September, 1894; that said tax deed is based on a judgment rendered in the case of the State of Missouri at the relation and to the use of J. W. Singleton, collector of the revenue of Douglas county, Missouri, v. Francis M. Worrell, at the March term, 1894, of the Douglas County Circuit Court;.that said tax deed and the execution and judgment upon which said deed is based show the true description of the said land, to-wit, the northwest quarter of section 9, township 25, range 15, but the petition and back tax bill upon which the judgment in said cause is based have been changed and altered since said judgment was rendered, so that said petition and back tax bill, instead of showing the correct description of said lands as above described, show them to be the northwest quarter of section 9, township 25, range 16; that the date of the service of the summons by the sheriff in said cause shows to have been changed, altered or erased since the rendition of said judgment, so that the said return of the sheriff does not show to be a legal and sufficient service to base a judgment on, and that the publisher’s affidavit to the sheriff’s notice of sale shows to have been altered and changed since said judgment was rendered and now shows said notice to have been published, commencing on August 30th and ending on September 13, 1894, instead of the correct dates which said notice was published, to-wit, August 30th, September 6th, September 13th and September 21, 1894. Defendant further says that he is the owner in fee simple of said lands above described, and that plaintiff claims some right, title or interest in said lands adverse and prejudicial to the title of defendant.

“Therefore the defendant prays the court to try, ascertain and determine the right, title and interest of plaintiff and defendant, respectively, in and to the lands herein described, and especially to hear and determine all matters and things, erasures, changes,. alterations and mutilations that may appear in the tax proceedings above set out, and by its decree adjudge the title to said lands to be in defendant and that this plaintiff hold nothing on account of the title as set up and claimed in his petition, and for all proper relief. ’ ’

Reply, a general denial.

■ It was admitted that the common source of title was Francis M. Worrell.'

Plaintiff introduced a warranty deed from Francis M. Worrell to Harrison Williams, of date February 15, 1892, but recorded October 19, 1910. In the meantime, i. e., between the date of the deed and the date of the record, two tax suits had been brought and the lands sold or attempted to have been sold, under judgment in these cases.

Defendant undertakes to dereign his title through one or both of these tax proceedings. The fight thus centered below, and must so center here. The contentions, pro and con, as to the validity of these proceedings will be noted in the opinion. The lands appear to be wild and uncultivated lands. This sufficiently states the case.

I. It is suggested in the brief for respondent, that the judgment should be affirmed because the appellant has not brought to this court in his abstract all the evidence. This, upon the theory that the action is one in equity. The abstract of record is a little peculiar, in that it sets out what purports to be the substance of the evidence in places, and then in other places sets out the full questions and answers. We have gone over the record thoroughly, and conclude that the abstract is sufficient, even under our rule in equity cases. There is no counter abstract of record, nor is it pointed out what evidence has been left out. This contention is ruled against respondent.

II. A vital point in defendant’s case is the tax proceeding which terminated in a default judgment at the March term of the Douglas Circuit Court for the year 1894. It will be noted that it is in this proceeding that defendant charges that the records have been changed, and asks the circuit court to so find. It is charged by the defendant that the number of the range had been changed both in the petition, and in the tax bill, and further that the date of the service of the summons upon the defendant in the tax suit had been changed. The trial court found for the defendant as to the changes in the tax hill and the petition, and found that it had been changed after entry of judgment. By our order the original files in this tax case have been forwarded to this court, and we have examined the same. As to these findings aforesaid we are not disposed to criticize the ruling of the trial court. There was sufficient evidence to justify such findings. On the question of the alteration of the date of the return the trial judgment says:

“The sheriff’s return on the summons in said suit has been altered and changed till it is impossible to determine what was the correct date of service, but the court finds from the evidence that the service in said suit was made in due time, and the court finds that the publisher’s affidavit to the sheriff’s sale notice under the execution has been changed and erased since the rendition of said judgment, but that said notice was duly published as the law directs and for the proper number of times.”

To go into the details, it should be said that these files in the tax proceeding show: (1) A tax bill made out by the proper officer in which it is stated that the owner’s name was £ £ Abe Manning; ” (2) a petition upon this tax bill, in which the defendant is named as £ £ Francis M. Worrel;’’ (3) a summons directed to “Francis M. Worrel;” (4) a service of said summons thus returned: “Executed the within writ in the county of Douglas and State of Missouri, on the 18th day of March, 1894, by delivering copy of petition and summons to Franas W. Warroels;” (5) special execution in which the name “Francis M. Worrel” is used; (6) sheriff’s return of levy and sale which shows that he seized and levied upon the “N. % — 9—25—15, and did sell the above land on 26th day of September, 1894, for $12.05, not satisfied.” Notice of sale under special execution in which the name “Frances M.' Worrel” is used; and (8) a sheriff’s deed in which the name Francis M. Worrell is used.

It will be noted that in places the name “Worrel” is sometimes used with one “1” and at others with two “l’s”. This we take it is not at all vital. It should be borne in mind that respondent placed all these records and papers in evidence. If they impeach the judgment of the court in the tax proceeding, he has furnished the impeaching evidence. In these files it appears that the judgment ran.against Francis M. Worrel. The execution so recites the judgment There was no answer in the files, and the tax judgment was evidently one by default. It is so treated throughout the case.

The first suggestion by this record is, whether or not the court had jurisdiction over Francis M. Worrel in this tax proceeding. The data as to the tax preceding we have taken from the original files therein, and whilst they differ from statements made in the briefs, they are correct. The returns of the sheriff upon the summons is made with pencil instead of pen, yet it is clear that there has been no change therein, unless it might be as to the date of the service, and for the question we now have in mind, that matter'is immaterial.

It is a rule of long standing in this court that the recitation in a tax judgment of the fact that the defendant has been duly served with process may be impeached by other portions of the judgment roll. Of course, the judgment bears the presumption of correct recitations, until such time as the incorrect recitations are made to appear by other portions of the judgment roll of equal dignity. The return of the sheriff is a portion of the judgment roll and is at least of equal dignity. In fact, this return of service is recognized as of greater dignity than the recital of the service in the judgment itself. [Milner v. Shipley, 94 Mo. l. c. 109.] Speaking in that case of an order of publication (constructive rather than actual service, which as to the rule here involved is the same) Black, J., said:

“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.] ”

In Williams v. Monroe, 125 Mo. l. c. 584, Gantt, P. J., thus summarizes the rule:

“But this doctrine, when rightly understood, does not in the least shake the authority of those decisions in this State which hold that, although the record of a court of general jurisdiction recites that defendant have been duly served with process, it is competent to overthrow such recital by showing by other portions of the record of equal dignity, and importing equal verity, that such recital of service is not true. [Cloud v. Pierce City, 86 Mo. 357; Laney v. Garbee, 105 Mo. 355; Milner v. Shipley, 94 Mo. 106; Bell v. Brinkmann, 123 Mo. 270; 1 Freeman on Judgments (4 Ed.), sec. 125; Higgins v. Beckwith, 102 Mo. 456.]”

In the early case of Cloud v. Inhabitants of Pierce City, 86 Mo. l. c. 366, this question was fully threshed out by Sherwood, J., in an opinion concurred in by the full court. In that case the judgment as in this case recited personal service on the defendant. The court there said:

“But it is strenuously insisted.that the judgment, in any event, is not open to collateral attack for several reasons which I will presently notice. It will be assumed as a basis for the discussion of the reasons offered by plaintiff in support of the judgment recovered by him, that where the record of a court of general jurisdiction is silent, and nothing appears thereon showing lack of jurisdiction, jurisdiction, as a matter of law, will be presumed when collaterally called in question. [Huxley v. Harrold, 62 Mo. 516, and cases cited.] ‘Nothing shall be intended to be out of the jurisdiction of a superior court, but which specially appears to be so. ’ [Peacock v. Bell, 1 Saund. 73.] The record recites that the ‘defendants have been duly served with process at least fifteen days before the first day of this term.’ The best considered cases, and numbers of them, hold, notwithstanding such jurisdictional recital, that it is competent to overthrow and countervail it by other parts of the record of equal dignity and importing equal verity that such recital is untrue. [Wells on Jurisdiction, secs. 82, 87, and cases cited; Harris v. Lester, 80 Ill. 307; Coit v. Haven, 30 Conn. 190; Freeman on Judgments, secs. 24, 25; Granger v. Clark, 22 Me. 128; Prince v. Griffin, 16 Iowa, 552; 2 Smith’s Lead. Cases, 842; Hewitt v. Weatherby, 57 Mo. 276; Harris v. Hardeman, 14 How. 334, and cases cited; Raley v. Guinn, 76 Mo. 263.] The return of the sheriff is a part of the record itself and may, where radically defective, be used to rebut the .presumption arising from recitals of service contained in other portions of the record. But so far as concerns courts of general jurisdiction, and of that class I now speak, it matters not whether snch recitals be made of record or not. They add nothing to the verity which attends as an inseparable incident such records. [Coit v. Haven, supra; Freeman on Judgments, sec. 132.]” Later in the same case the learned jurist quotes Freeman on Judgments (4 Ed.), as follows:

“On this point, Mr. Freeman observes: ‘But no presumptions in support of the judgment are to be allowed in opposition to any statement contained in the record. If an act be stated in the roll as having been done in a specified manner, no presumption arises that at some future time the act was done in a more efficient manner. If it appear that the process was served in a particular mode, no other and different service can be presumed. To indulge such a presumption would be to contradict the record, which imports absolute verity. When, therefore, the record shows that certain steps were taken to procure jurisdiction and the law does not consider those steps sufficient, the judgment will be regarded as void for want of jurisdiction over the defendant.’ [Freeman on Judgments, sec. 125.] And the learned author, after referring in a subsequent section to the cases m California, already noticed, speaks of them as having carried ‘the effect of jurisdictional findings to its utmost limit, and further, perhaps, than is justified by the more recent adjudications,’ and then, after reiterating, in substance, the doctrine already quoted, says: ‘Generally the recital of jurisdiction or of service of process contained in the judgment will be construed in connection with the whole record and will be deemed to refer to the kind of service shown by the other parts of the record. ... If an attempt at notice appears in the record the finding, if a general one, refers to and is limited by such attempted notice.’ [Ibid., 130.] This view of the law, as to the probative force of such general recitals, finds ample support elsewhere. [Mickel v. Hicks, 19 Kan. 578; Mayfield v. Bennett, 48 Iowa, 194.]”

To like effect is Laney v. Garbee, 105 Mo. l. c. 358 et seq., and Higgins v. Beckwith, 102 Mo. 456.

The return of the sheriff in this tax case fails to show that the court ever acquired any jurisdiction over Francis M. Worrel, the defendant therein. It requires uo citation of the cases to show that “Franas W. Warroels” and “Francis M. Worrel” are not idem sonans. Neither by ear nor eye could they be said to be the same. By no stretch of sound could we say that they were similar. If they are not idem sonans, and they are clearly not, then under all the record in this case there was no service upon Francis M. Worrel, and the tax judgment relied upon by respondent is void for want of jurisdiction in the court which rendered it.

III. The foregoing determines the case against defendant, because, if the title has never passed from Francis M. Worrel, except by the deed to plaintiff, the defendant’s title fails. If the judgment was void for want of service the record title of Francis M. Worrel failed to pass in the tax case. Such judgment is void for want of service. Had we a record where John Jones was sued and Jim Smith was served, it would not be a stronger case than the one at bar. Smith having no interest in the property could well say, “I will make default, because it will not hurt me, ’ ’ but if he does, it does not bind Jones, who was never served with process.

But there is another fatal link in defendant’s case. The notice of sale is bad. This notice of sale recites a judgment against Frances M. Worrel, and not Frcmcis M. Worrel. We do not think in a matter of this kind that the doctrine of idem sonans can rescue the case for defendant. Here we have two words absolutely independent in meaning, one indicating the feminine gender, and the other the masculine gender. A judgment against Frances M. Worrel or a notice to the same, is a judgment and notice as to a woman and not a man. We hardly think the doctrine of idem sonaA%s can or should be invoked when two very similar words are used to express a difference of sex, and to thus peculiarly distinguish, one individual from another. The tax deed failed under this notice.

There are one or two other errors in the case that might demand consideration, but in the light of the foregoing we do not deem it necessary to go further. It is clear that the tax deed relied upon by defendant, above discussed, is void, and the judgment nisi is wrong. Judgment should have gone for the plaintiff. Let the judgment be reversed and the cause remanded, with directions to enter judgment for plaintiff in accordance with his petition.

All concur; Bond and Blair, JJ., in result.