American Wine Co. v. Scholer

• Decision Date: 27 February 1883
• Citation: 13 Mo.App. 345
• Parties: AMERICAN WINE COMPANY ET AL., Appellants, v. JOHN H. SCHOLER, Respondent.
• Court: Missouri Court of Appeals

13 Mo.App. 345

AMERICAN WINE COMPANY ET AL., Appellants,

v.JOHN H. SCHOLER, Respondent.

St. Louis Court of Appeals, Missouri.

Feb. 27, 1883.

APPEAL from the St. Louis Circuit Court, ADAMS, J.

Affirmed.

J. M. & C. H. KRUM, for the appellant: From the time the sheriff levied the execution on the property in question, he became quasi the agent of the defendant for the sale of the stock. Between the purchaser and the defendant in the execution the law raises a contract of sale the same as if made with himself.-- McKnight v. Gordon, 13 Rich. 222. A sheriff, in making a sale under an execution, acts as the ministerial officer of the law and not as the organ of the court. He is not its instrument or agent (as in case of judicial sales) and the court is not the vendor.--Bac. Abr., tit. “Sheriff,” m; Freeman v. Hunt, 3 Dana, 614; South v. Maryland, 18 How. 396; Griffith v. Fowler, 18 Vt. 394. The irregularity must be such as to render the whole proceeding a nullity.-- Draper et al. v. Bryson et al., 17 Mo. 71; Weber v. Cox, 6 T. B. Mon. 110; Howe v. Starkweather, 17 Mass. 240; May v. Thomas, 48 Me. 397. It is the policy of the law that the title of purchasers acquired under execution sales shall be maintained, and a sale may be valid though the statutory requirement may not have been complied with by the sheriff in making such sales.--Herman on Ex. 512, sect. 342; Lenox v. Clark, 52 Mo. 115; Little v. Zunts, 2 Ala. 260. A sale of personal property under execution, if fair and the execution be valid, carries to the purchaser the title and right of the debtor to the property, if the purchaser himself is not in fault.-- Hamilton v. Shrewsbury, 4 Rand. 427; Ponder v. Mosely, 2 Fla. 207; Hobein v. Murphy, 20 Mo. 447; Lawrence v. Speck, 2 Bibb. 40; Pollard v. King, 63 Ill. 36; Curd v. Lackland, 9 Mo. 451; Smith v. Randall, 6 Cal. 47; Houck v. Cross, 67 Mo. 151. The action of the trial court constituted a judgment.-- Stagel v. Murdock, 65 Mo. 524. Appellate courts will review the judgment of the trial courts independently of any question of exception.-- Bateson v. Clark, 37 Mo. 34; City v. Milligan, 18 Mo. 181.

KEHR & TITTMAN, for the respondent: Every one taking title under the process of a court must be understood as taking subject to the approval by the court of the proceedings had under it.-- Ray v. Stobbs, 28 Mo. 38; Nelson v. Brown, 23 Mo. 13; Downing v. Still, 43 Mo. 309-328. A proceeding to vacate a judicial sale may be begun by motion.--Freeman on Ex., sects. 306, 310; Rorer on Jud. Sales, sects. 1081, 1082; Malloy v. Batchelder, 69 Mo. 503; Holden v. Vaughan, 64 Mo. 588. A motion to set aside an execution sale, being a proceeding at law, the appellate court will not review or weigh the evidence.-- Holden v. Vaughan, 64 Mo. 588. The levy upon three hundred and thirty-three full-paid shares of the par value of $33,300, under an execution for $5,739.71, was excessive and oppressive.-- Silver v. McNeil, 52 Mo. 518; Hannibal, etc., Co. v. Brown, 43 Mo. 294; Phillips v. Evans, 64 Mo. 24. The defendant in the execution, having been misled by the assurance given his attorney by the deputy sheriff as to the hour of sale, and his property having been sacrificed in consequence of it, the sale should be set aside.--Rorer on Jud. Sales, 409, sect. 1099; The State ex rel. v. Moore, 72 Mo. 285; Parker v. Railroad Co., 44 Mo. 415. The sheriff is bound by the acts and declarations of his deputy.-- Stevenson v. Potter, 45 Mo. 358. The power to sell property does not confer the right to sacrifice it. If he can see that property is about to be sacrificed, he is not bound to accept the bid, but may delay or adjourn the sale. Under such circumstances, he would be justified in making the return that the property levied on was not sold for the want of bidders.-- Conway v. Nolte, 11 Mo. 74; Shaw v. Potter, 50 Mo. 281; Good v. Crow, 51 Mo. 212; Strawbridge v. Shaw, 52 Mo. 21; The State ex rel. v. Moore, 72 Mo. 285. The rule in this state and elsewhere is, “to disallow in every case a lumping sale by the sheriff where, from the distinctness of the items of property, he can make distinct sales. There may be exceptions, but the purchaser must bring himself within them.” Such is the rule laid down in Rowley v. Brown, 1 Binn. 62; quoted and approved in Rector v. Hart, 8 Mo. 461; and affirmed in Kelly v. Hurt, 61 Mo. 463; The State ex rel. v. Yancy, 61 Mo. 397; Bouldin v. Ewarts, 63 Mo. 331; Freeman on Ex. 491, sect. 296. The price bid is so grossly inadequate as to make it unconscionable to permit the sale to stand.-- Nelson v. Brown, 23 Mo. 13; Mechanics' Bank v. Pitt, 44 Mo. 364; Parker v. Rail road Co., 44 Mo. 415; Mitchell v. Jones, 50 Mo. 438; Wagner v. Phillips, 51 Mo. 117. No exception was taken to the action of the court below in sustaining the motion to set aside the sheriff's sale. The motions for new trial and the exception of appellants to the overruling thereof, are of no avail. Hence appellants have preserved no exceptions whatever by the record, and there is nothing for this court to review.-- Welsh v. Monks, 12 Mo. App. 579.

THOMPSON, J., delivered the opinion of the court.

This appeal is taken from an order made in a proceeding by motion setting aside an execution sale, and awarding a writ of venditioni exponas in respect of the property levied upon. No exception was taken to the final order of the court upon the motion; but the appellants, the American Wine Company, which was the plaintiff in the execution, and Isaac Cook, who was the purchaser at the execution sale, on the day on which the order was made, filed motions to set aside the order, and for a new trial, or rehearing of the motion, setting forth specific reasons therefor; which motions the court overruled, and the appellants, at the time, excepted. It is perceived that the appellants, by failing to except to the order of the court upon the motion, have precluded themselves from raising any objection thereto not going to the jurisdiction of the court over the proceeding. It is a well-settled rule of practice that, in a proceeding by motion, an exception to the order of the court disposing of the motion cannot be saved by filing a motion for a rehearing or new trial, and, when this is overruled, saving an exception to this ruling. Bremen Saving Bank v. Allen, 7 Mo. App. 579; Welsh v. Monks, 12 Mo. App. 579.

This ruling seems highly technical, and if I were asked to give a reason for it, I should not venture to do so. It was established as a rule of practice by the supreme court, and this court has therefore felt itself not at liberty to disregard it, but has followed and applied it wherever it has been insisted on, and must do so now.

It therefore remains only to consider the objection that the court had no jurisdiction to entertain the motion to set aside the execution sale. The objection is not well taken. That this is a proper mode of proceeding, is settled by a long line of decisions in this state; and it is no objection that, in order to succeed on such a motion, the moving party sets out the facts on which he rests his claim for relief with as much fulness as he would if he were seeking the same relief through a bill in equity. He will seek his relief by a presentation of the facts which entitle him to that relief; and it is certainly no objection that he sets those facts out with fulness and precision. The motion in this case was made on the first day of the term after the sale took place, which was the return day of the writ of fieri facias. There can, therefore, be no objection to the jurisdiction growing out of any delay in instituting the proceeding. Nelson v. Brown, 23 Mo. 13; Ray v. Stobbs, 28 Mo. 35; Downing v. Still, 43 Mo. 309, 321. Every court has control of its own process, and jurisdiction to entertain proceedings by motion to prevent or redress an abuse of the same; and the cases are numerous in this state, where proceedings by motion have been entertained to set aside execution sales on grounds similar to those set up in the present motion. See Hicks v. Perry, 7 Mo. 346; Clamorgan v. O'Fallon, 10 Mo. 112; Nelson v. Brown, 23 Mo. 13; Meir v. Zellé, 31 Mo. 331; Harrison v. Cachelin, 35 Mo. 79; Mechanics' Bank v. Pitt, 44 Mo. 364; Parker v. Railroad Co., 44 Mo. 415; The State ex rel. v. Yancy, 61 Mo. 397; Holden v. Vaughan, 64 Mo. 588; Malloy v. Batchelder, 69 Mo. 503. In Mechanics' Bank v. Pitt ( supra), the property sold under the execution consisted of certain shares of stock, as in this case.

The appellant Cook was properly notified of the motion. There is nothing in the objection that he could not be brought into court in such a manner as to conclude his rights, except...