83 Mo. 100 (Mo. 1884), Ross v. Ross

• Citation: 83 Mo. 100
• Opinion Judge: HENRY, J.
• Party Name: ROSS et al. v. ROSS, Appellant
• Attorney: R. B. Oliver for appellant. Linus Sanford for respondent.
• Court: Supreme Court of Missouri

Page 100

83 Mo. 100 (Mo. 1884)

ROSS et al.

v.

ROSS, Appellant

Supreme Court of Missouri.

October Term, 1884

Appeal from Cape Girardeau Circuit Court. --HON. J. D. FOSTER, Judge.

REVERSED.

R. B. Oliver for appellant.

(1) A judgment rendered on a motion to quash an execution is a final one, and an appeal will lie from it. (2) The judgment was not responsive to the issues made and was void. Ross v. Ross, 81 Mo. 84. (3) The action of the court making the amendment to the judgment was wrong. Freeman on Execution, sec. 75. (4) The motion to quash should have been sustained. Freeman on Executions, secs. 20, 73 and 75; Freeman on Judgments, sec. 117.

Linus Sanford for respondent.

(1) In the first judgment the court had jurisdiction of both the person of the defendant, and of the subject matter of the cause of action. (2) In the amended judgment the court says in its finding, the parties by their attorneys appear as Wm. L. Unger, etc., is conclusive as to the jurisdiction of the person. Rumfelt v. O'Brien, 57 Mo. 571; Freeman v. Thompson, 53 Mo. 183; Baker v. Stonebraker, 34 Mo. 172. (3) The appellant cannot in his motion to quash the execution attack the judgment for any irregularity so long as the same is not void. If there has simply been error committed his remedy is by appeal or writ of error. Marsh v. Bast, 41 Mo. 293; Bracket v. Bracket, 53 Mo. 265.

HENRY, J.

At the January term, 1881, of the circuit court of Cape Girardeau county, a judgment was obtained by plaintiffs against defendant in a suit instituted against defendant to set aside a conveyance of a tract of land in range 12 in that county, on the grounds of fraud perpetrated by the grantee, the defendant, upon the grantor, and mental incapacity of the grantor, who is the mother of the plaintiffs and defendant. After hearing the evidence in the cause the court permitted an amendment to plaintiffs' petition alleging that the deed executed by the grantor was intended to be a mortgage or security for debts already paid for the grantor by the defendant. The court found for plaintiffs, not that the grantor had not capacity to make a conveyance, or that it was procured by fraud, but that the deed was executed as a security for said sums advanced by defendant and ordered a sale of said land, and that out of the proceeds should be first paid the costs of sale, and next said sum of money...