Bank of Missouri v. Bray
| Decision Date | 31 January 1866 |
| Parties | BANK OF THE STATE OF MISSOURI, Appellant, v. C. D. BRAY et al., Respondents. |
| Court | Missouri Supreme Court |
Appeal from Greene County Probate and Common Pleas Court.
E. B. Ewing, for appellant.
The court erred in setting aside the judgment. The record shows service on the respondent by delivering a copy of the petition and writ to him October 6, 1862. It is not conceived how the court, in the face of the record on a mere motion, without any allegation or evidence impeaching the return of the officer, (even if it were competent to the respondent to do so in this form of proceeding,) could set aside the judgment on the ground alleged.
The motion to set aside the judgment was too late, not having been made at the term at which it was rendered. If the judgment had been taken without notice, as alleged, this would not be a mere irregularity, which could be corrected, by motion, after the term at which it was rendered; but the judgment would be absolutely void, not merely voidable.
The cause alleged for setting aside the sale and quashing the execution, is, that the sale was made after the return day of the execution, and that the execution was functus officio. This is error. (Local Acts 1855, pp. 58-9, § 9; Session Acts, 1863, p. 20, § 2.)
Appellant obtained judgment against Stone and others on a bill of exchange, in the Probate and Common Pleas Court of Springfield, at the May term of said court, 1863. Execution issued on said judgment, returnable to the next succeeding November term, directed to the sheriff of Christian county. The sheriff levied on the property of Stone on the 4th day of February, 1864, and sold the same on the 8th day of March thereafter, when the Bank and one Davidson became the purchasers. At the May term succeeding, Stone filed his motion to set aside the sale made by virtue of the execution, and to quash the same, and also to set aside the judgment as to him for the following reasons: 1. The court had no jurisdiction of the person of the defendant, he not having been summoned; 2. There was no legal summons issued in said case; 3. Defendant was not served with process. And he further asked that the said sale be set aside for the following additional reasons: 1. Because it was made after the return day of the execution; 2 That the execution was functus officio.
The court sustained the motion, quashed the execution, and set aside the sale and judgment; to which action of the court appellant excepted,...
To continue reading
Request your trial
-
Ammerman v. Linton
... ... KIRBY and ADDA KIRBY; C. W. DURRETT, Intervener, Appellant Supreme Court of Missouri, First Division July 9, 1919 ... Appeal ... from Knox Circuit Court. -- Hon ... void. (a) The judgment and decree in the first suit brought ... by the First National Bank of Stronghurst, Illinois, on April ... 12, 1911, was based upon the fact that Charles W. Kirby was ... v. Howard, 150 Mo. 445; ... Stewart v. Severance, 43 Mo. 331; Bank v ... Bray, 37 Mo. 194; Lackey v. Lubke, 36 Mo. 124; ... Wack v. Stevenson, 54 Mo. 485; Butler v ... ...
-
Fulkerson v. Laird
...return date specified therein. It then had spent its force, and all subsequent proceedings under it were null and void. Bank of Missouri v. Bray, 37 Mo. 194, 195(1); City of Jefferson v. Curry, 71 Mo. 85(1); McDonald v. Gronefeld, 45 Mo. 28; Chasnoff v. Porto, 140 Conn. 267, 99 A.2d 189, 19......
-
Downing v. Still
...XI. The judgment, execution, and sale thereunder may be set aside, after the return term of the writ, on motion. (Bank of the State of Missouri v. Bray, 37 Mo. 194; Wooten v. Heinkle, 20 Mo. 290; Neal v. Stone, 20 Mo. 294; Clamorgan v. O'Fallon and Lindell, 10 Mo. 112.) In the last case abo......
-
Blodgett v. Perry
...14 La. 663; Berhn v. Gilley, 13 La. 461. (3) Sale of real estate under execution, where levy is made after return day, is void. Bank v. Bray, 37 Mo. 194; Freeman Executions, 106. (4) Sale under execution that may have expired is void. Wack v. Stevenson, 54 Mo. 485. (5) It is only where a le......