ON MOTION FOE EEHEABING.
Ellison, J.A further examination of this cause discloses that, under the uniform ruling of the supreme court of this state, no jurisdiction whatever was obtained over the person of Bouton; and that the service was not merely defective, but was no service, and the judgment against him was not merely erroneous, but void. France v. Evans, 90 Mo. 74; and can be questioned collaterally. Howard v. Clark, 43 Mo. 344. So that if we concede for the moment that the jurisdiction involved by the defective service went only to the person, and not to the subject-matter, as is so earnestly urged, the case still fails, as the lack of notice to Bouton for the statutory length of time rendered the judgment against him absolutely void.
We add these additional remarks to what was said as to the recital by the record of the circuit court of, “Now on this nineteenth day of March, 1888, come the parties to these proceedings.” It should appear from the face of the record that there was jurisdiction.
This' should be plainly shown and expressed with certainty. An equivocal statement will not suffice to make out the appearance of a party not served with notice. Freeman, in his work on Judgments, section 155, says: “In all cases where the expression in the *614judgment is general it will be confined to the parties served with process.” This is undoubtedly true where the general expression will fully apply to the parties served with process. In Hubbard v. Dubois, 37 Vermont, 94, the record showed a proper service on two of four defendants, and the judgment recital was that “defendants came by their attorney.” It was held that the record referred to the two defendants who were' served and only showed an appearance by those two.
In .the case at bar the record does not mention Bouton by name, nor is the style of the case such that the word “parties” necessarily refers to him. There were a number of parties to the cause, and it would be outside the bounds of reason to hold that the plural word “parties,” which finds its proper application to others than Bouton, necessarily includes him, when he took no part in the appeal and had no notice of the proceedings..
Motion denied.
Gtll, J., concurs. Smith, P. dissents.ADDITIONAL OPINION BY
SMITH, P. J.I have been unable to agree with my associates in either of the opinions expressed by them in this case. I deem the decision contrary to a number of decisions-of the supreme court.
I. The service of notice on Bouton was sufficient, to confer jurisdiction over his person for the purposes of the condemnation proceedings. Fithian v. Monks, 43 Mo. 502; Hagerman v. Sutton, 91 Mo. 519; Quayle v. Railroad, 63 Mo. 465; Griffin v. VanMeter, 53 Mo. 430.
II. Therefore the proceeding upon which the plaintiff’s cause of action is based is not open to collateral attack. Branstetter v. Reeves, 34 Mo. 318; Castleman v. Rief, 50 Mo. 583; Wellshear v. Kelly, 69 Mo. 343.
*615III. The jurisdiction of the circuit court was completed by the record recitals of the appearance of Bouton there upon the appeal. Crow v. Meyersieck, 88 Mo. 411; Bouleran v. Railroad, 79 Mo. 494; Grant v. Railroad, 79 Mo. 502; Fitterling v. Railroad, 79 Mo. 504; Reddick v. Newburn, 76 Mo. 423; Kelly v. Railroad, 86 Mo. 681; Krowski v. Railroad, 77 Mo. 362; Griffin v. VanMeter, 53 Mo. 430.
The cause and original transcript therein will, therefore, be certified and transferred to the supreme court.