Bick v. Carter

• Decision Date: 05 February 1907
• Citation: 123 Mo. App. 311,100 S.W. 531
• Parties: BICK v. CARTER.
• Court: Missouri Court of Appeals

100 S.W. 531

123 Mo. App. 311

BICK v. CARTER.

St. Louis Court of Appeals. Missouri.

February 5, 1907.

EXECUTION — ISSUANCE — DEATH OF DEBTOR BEFORE ISSUE OF WRIT.

An execution issued against the property of a judgment defendant after his death is void, and the court may quash the same, since it has control of its own process.

Appeal from Circuit Court, Audrain County; Jas. D. Barnett, Judge.

Action by J. J. Bick against W. P. Carter. From an order sustaining a motion to quash an execution, plaintiff appeals. Affirmed.

E. S. Gant, for appellant. Geo. I. Grover and Geo. Robertson, for respondent.

GOODE, J.

This is an appeal from an order sustaining a motion to quash an execution. The judgment on which the execution was issued was recovered by plaintiff against defendant January 22, 1894, before a justice of the peace, and was for $85. Said judgment was revived November 9, 1903, and subsequently a transcript of the revived and renewed judgment was filed in the office of the circuit clerk of Monroe county. An execution was taken out on this transcript and levied on three lots in the city of Paris, Mo., and on another parcel of ground in said city. The levy was made August 3, 1905, and a sale of the lots took place pursuant to the levy September 5th of that year. On September 16th Martha A. Vaughn appeared in court and filed a motion to quash the execution, alleging in support of the motion that the execution defendant, W. P. Carter, had died in August, 1904, prior to the execution sale, and that before his death she had purchased the property from him on which the execution was levied. The court sustained the motion to quash, and plaintiff appealed, assigning for error that Martha A. Vaughn, the mover, not being a party to the action, had no right to interpose against the execution and the court ruled wrongly in entertaining and sustaining her motion.

It is no doubt true, as a general proposition, that a person not a party to a suit cannot interfere with the progress of the proceeding either before or after judgment, and hence will not be heard on motion to quash an execution issued against the judgment defendant on the ground that he was the owner of the property. State ex rel. v. Clymer, 81 Mo. 122; Oxley Stave Co. v. Butler, 121 Mo. 638, 26 S. W. 367; Gay v. Orcutt, 169 Mo. 407, 69 S. W. 295. It is held that a court cannot try the title to property in this mode. Those cases proceeded on the theory that the execution defendant was still living...