Parker v. Hannibal & St. Joseph R.R. Co.

• Decision Date: 31 August 1869
• Citation: 44 Mo. 415
• Parties: GEORGE PARKER, Respondent, v. HANNIBAL & ST. JOSEPH RAILROAD COMPANY, Appellant.
• Court: Missouri Supreme Court

44 Mo. 415

GEORGE PARKER, Respondent,

v.HANNIBAL & ST. JOSEPH RAILROAD COMPANY, Appellant.

Supreme Court of Missouri.

August Term, 1869.

Appeal from Fourth District Court.

Carr, and Hall & Oliver, for appellant.

I. This is in the nature of an equitable proceeding praying summary relief, and this court will review both the facts and the law.

II. The filing and approval of the recognizance for an appeal to the Supreme Court, and granting the same, operated as a supersedeas of said execution. (R. C. 1855, ch. 128, § 12, p. 1287.)

III. There was a gross inadequacy of price in this case. This being true, “courts will require that there be a strict regularity in the proceedings.” (Nelson v. Brown, 23 Mo. 21; 6 Wend. 524.) It is the policy of the law that sheriffs' sales should be conducted with fairness and regularity; and if a purchaser participates in any unfairness or irregularity, it will vitiate his purchase. (Nelson v. Brown, 23 Mo. 14; Neal v. Stone, 20 Mo. 294; Wooton v. Hinkle, id. 290; Stewart v. Nelson, 25 Mo. 309; Miltenberger v. Morrison et al., 39 Mo. 71.)

IV. Ruby, the purchaser, was the agent of the respondent, and, as such, he is not regarded as a bona fide purchaser. Whatever fraud or irregularity will vitiate the purchase in the hands of the one will likewise vitiate in the hands of the others. (Gott v. Powell et al., 41 Mo. 416; Stewart v. Croes et al., 5 Gilman, 442; Day et al. v. Graham et al., 4 Gilman, 389; Groff v. Jones, 6 Wend. 524; Han. & St. Jo. R.R. Co. v. Brown & Lander, 43 Mo. 294.)

Prewitt, for respondent.

I. The execution takes its validity from the original judgment. A recognizance only operates as a supersedeas to the judgment appealed from. In this case the court overruled the motion to quash, and gave judgment in favor of plaintiff for costs. Hence, the recognizance only prevented plaintiff from taking out execution for the costs of the motion to quash until the judgment was affirmed by the Supreme Court. The recognizance was no security for the debt for which judgment was originally given. (Gen. Stat. 1865, §§ 11, 12, 17, p. 648; Ruby v. Han. & St. Jo. R.R. Co., 39 Mo. 480.)

II. A mere motion to quash does not enjoin the execution. If defendant desires to enjoin the sheriff until his motion to quash can be heard, he must resort to a court of chancery for an injunction, or proceed in the manner pointed out by the statute to stay it. (Gen. Stat. 1865, §§ 6-9, p. 648.)

III. If a motion to quash does not enjoin the sale, an appeal from the judgment overruling the motion to quash can not have that effect.

IV. Sales will not be set aside for mere inadequacy of price. (Hammond v. Scott, 12 Mo. 8.)

V. The sale was made between the hours prescribed by law, (Gen. Stat. 1865, § 45, p. 645.)

WAGNER, Judge, delivered the opinion of the court.

The defendant filed its motion to quash an execution in the Macon County Circuit Court, at the return term thereof, on the morning of the day on which property was to be sold to satisfy the same. By consent of counsel the motion was at once taken up, and overruled by the court. To the ruling of the court the defendant at the time excepted, prayed for an appeal, filed its affidavit and recognizance, and the appeal was perfected.

It seems that there was an attempt made between the respective attorneys who represented the parties to arrange and compromise the debt which the property was levied upon to satisfy, and that it was mutually agreed upon between them that there should be no sale at the time other property was sold on execution that day. Carr, the defendant's attorney, swears that it was his opinion that the appeal operated as a supersedeas, and that his understanding of the agreement was that there was to be no sale at that term of the court, and that the matter was to rest until the result of the pending appeal was determined; while Dysart, the attorney for the plaintiff, who had the management of the execution, states that he did not intend that the sale should be entirely stopped, but only postponed to await the result of their negotiations. The sheriff's sale took place at half-past one o'clock, but the lands levied on to satisfy this execution were not sold at that time. After the regular sales were over and the bidders had dispersed, at about half-past four o'clock in the afternoon, Ruby, who acted as agent for the plaintiff, ordered the sheriff to proceed to sell the land, which he did accordingly. The defendant's attorney, being notified thereof when he was busily engaged in court, paid no attention to it. Under the sale, two hundred and forty acres of land, worth from eight to ten dollars an acre, were sold at a fraction over nine cents per acre--Ruby being the sole bidder and purchaser. A motion was then filed to set the sale aside, which was overruled, and exceptions duly saved. After an affirmance of the ruling of the Circuit Court in the District Court, the defendant appealed.

Two questions are presented: First, whether the appeal taken from the judgment of the court overruling the motion to quash operated as a supersedeas, and stayed all further proceedings on the execution; and, second, whether the court erred in refusing to set aside the sale. In ordinary cases the effect of perfecting an appeal is to render inoperative the judgment of the lower court. The judgment is suspended, and no proceedings can be had under or by force of it, after the appeal is actually taken. This position is not denied by the counsel for the respondent, but he contends that, as the execution derives its force from the judgment, nothing but an appeal from the judgment itself will have the effect of suspending the execution.

It is further argued that the statute concerning executions has pointed out a method by which executions may be stayed in the Circuit Court, and that that method has not been pursued in the present case. The sixty-seventh section of the statute referred to provides that if any person, against whom any execution shall be issued, apply to any judge of the court out of which the execution or order of sale may have been issued, by petition, verified by oath or affirmation, setting forth good cause why such execution ought to be stayed, set aside, or quashed--reasonable notice of such intended application being previously given to the opposite party, his attorney of record, or agent--such judge shall thereupon hear the complaint. The sixty-eighth section provides for giving recognizance for the debt, damages, and costs, where the judge shall be of the opinion that the execution should be stayed, set aside, or quashed; and the sixty-ninth section directs that the judge shall return such petition and proceedings thereon, duly certified, to the court out of which the execution was issued or order of sale is made returnable, and the clerk of the court shall enter the same upon his...