City of St. Louis v. Brooks

• Decision Date: 07 December 1891
• Parties: City of St. Louis v. Brooks, Respondent; Brown et al., Appellants
• Court: Missouri Supreme Court

18 S.W. 22

107 Mo. 380

City of St. Louis v. Brooks, Respondent; Brown et al., Appellants

Supreme Court of Missouri, First Division

December 7, 1891

Appeal from St. Louis City Circuit Court. -- Hon. L. B. Valliant Judge.

Affirmed.

F. A C. McManus and T. P. Bashaw for appellants.

(1) The sheriff's advertisement was sufficient. R. S. 1879, sec 2380. (2) Where the execution is regular on its face, the sheriff is not bound to go behind the writ to see whether the judgment is regular. Higdon v. Conway, 12 Mo. 295. (3) The form of notice given in this case is the one in common use, and this court will take cognizance of the forms commonly used to enforce the process of the courts. But if not there was no evidence offered tending to show that the sheriff proceeded in this case in any manner other than is usual in such cases. Greenl. on Ev. [14 Ed.] p. 13, and cases cited; Brown v. Piper, 91 U.S. 37. (4) At most defendant Brooks' objection to the advertisement goes merely to the form of setting out the sheriff's authority to sell; but the form of notice used in this case being the one in common use for many years, and vast property rights having been acquired under sales so advertised, this court will not now enter into nice psychological studies as to its effect upon the minds of bidders. (5) The sale ought not to be set aside, even though the notice was not as full as it might have been. Freeman on Void Judicial Sales, sec. 28, and cases cited; Cabell v. Grubbs, 48 Mo. 353; Draper v. Byron, 17 Mo. 71; Ladd v. Shippie, 57 Mo. 530; Higdon v. Conway, 12 Mo. 295.

P. Wm. Provenchere and F. H. Bacon for respondent.

(1) The exception of appellants to the action of the court, overruling their motion to set aside the order of the court, on respondent's motion, or for a rehearing, is not sufficient; they not having excepted to the ruling of the court sustaining respondent's motion, there is nothing here to review. Wine Co. v. Scholer, 13 Mo.App. 349. (2) The court has on motion jurisdiction at the term to which an execution is returnable to set aside a sale made under the execution. Freeman on Executions [2 Ed.] secs. 305, 306, 310; State v. Yancy, 61 Mo. 397; Wine Co. v. Scholer, 13 Mo.App. 345; S. C., 85 Mo. 496; McKee v. Logan, 82 Mo. 524. This last case is also to the point that on such motion notice need not be given to the sheriff.

OPINION

Black, J.

This case is now before us on the appeal of Lydia C. Brown and her husband to review the action of the circuit court in setting aside an execution sale.

The suit was instituted by the city of St. Louis against John T. Brooks to enforce a special tax bill for $ 37.20, against a lot having a frontal of thirty-one feet, owned by Brooks. There was no personal service of process upon him, he being a non-resident, but he was duly notified by newspaper publication. Final judgment by default was entered in April, 1888, on which a special execution was issued, dated the fourteenth of June of that year, returnable to the following October term. The sheriff sold the property under this execution on the seventh of July, 1888, and Lydia C. Brown became the purchaser at the sum of $ 101.

At the October term and on the first day thereof, Brooks appeared and moved to set aside the sale for the following reasons: That he was a non-resident and had no actual notice of the suit; that the property which was sold for $ 101 was reasonably worth $ 1,500; and because the sheriff's advertisement of the sale was irregular in this, that he thereby stated that he would sell the property "by virtue and authority of a special execution on special tax bill, issued from the office of the clerk of the circuit court," etc., instead of saying he would sell the property by virtue of a special execution issued on a judgment, etc.

Lydia C. Brown and her husband were duly notified of the filing of the motion and appeared and resisted the same. The court on proof of the matters stated in the motion made an order on the twelfth of November that upon the payment of $ 101 and costs into court by Brooks, within ten days, for the use of Lydia C. Brown, the motion would be sustained. Brooks made a deposit of the money, and on the twentieth of the same month the court sustained the motion, and thereby set aside the sale. No exceptions were taken or saved to either of these orders; but within four days Mrs. Brown and her husband filed a motion to set aside the orders and for a rehearing, which motion was overruled at the following December term. The Browns then for the first time excepted and in due time perfected this appeal.

It is insisted on behalf of Brooks that the rulings of the circuit court in setting aside the sale are not before this court for review,...