Bouldin v. Ewart

• Decision Date: 31 October 1876
• Citation: 63 Mo. 330
• Parties: DAVID W. BOULDIN, Respondent, v. DAVID EWART, Appellant.
• Court: Missouri Supreme Court

63 Mo. 330

DAVID W. BOULDIN, Respondent,

v.DAVID EWART, Appellant.

Supreme Court of Missouri.

October Term, 1876.

Appeal from Pettis Circuit Court.

Phillips & Vest, with Draffin & Williams for Appellant.

Childress & Musser, for Respondent.

HOUGH, Judge, delivered the opinion of the court.

This was an action of ejectment for one thousand and five acres of land lying in Pettis county. The plaintiff recovered judgment for three hundred and sixty-five acres, and the defendant has appealed. The only question for our determination is as to the validity of a sale under execution made on the 6th day of May, 1864, by the sheriff of Pettis county, during the session of the circuit court of said county at Georgetown. The defendant claimed title under this sale to that portion of the premises recovered by plaintiff.

The plaintiff contends that said sale was void; that prior to the date thereof the county seat had been removed from Georgetown to Sedalia, and that thereafter the circuit court could not lawfully hold its sessions at Georgetown; that in legal contemplation there was no court house there, and that the statute requiring all real property taken in execution to be sold at the court house door, on some day during the term of the circuit court of the county where the same is situated, was consequently not complied with. Other objections have been urged as being fatal to the validity of said sale which will be noticed hereafter.

On the 15th day of February, 1864, the Legislature passed an act, which took effect on its passage, the first section of which is as follows: “The seat of justice of the county of Pettis is hereby removed from Georgetown, the present county seat, to the town of Sedalia, on the Pacific railroad.”

The second section required the commissioners thereinafter appointed to proceed immediately to select a site for the location of the county buildings, and to obtain title to the same with the approval of the county court.

The third section is as follows: “The public records, and public movable property, shall be removed to the new county seat as soon as practicable after the passage of this act, and all courts hereafter to be held for said county shall be held at the new county seat: Provided, however, that the county court shall not be required to hold their sessions at the new county seat until suitable buildings are erected for their reception.”

Sections four to eight inclusive provided for ascertaining the cash value of the town lots in Georgetown, and for purchasing the same from the owners and paying them therefor.

Section nine designated three commissioners who were to select the site for the county buildings, prohibited the levy of any tax for the erection of the court house, but provided that the citizens of Sedalia, and vicinity, shall furnish the necessary means therefor, and concluded with the following language: “Nor shall the commissioners herein appointed enter upon the discharge of the duties imposed, until a sufficient amount of money has been raised for the completion of said court house.”

Section ten made it the duty of the county court at its next regular term after the passage of the act to appoint an architect to prepare a plan of a court house and make an estimate of the cost of the same, which plan and estimate were to be submitted to said court for approval or rejection, and if approved, the commissioners were then to enter upon the discharge of their duties as provided in the ninth section.

It appears from the record that the various courts of Pettis county had been held continuously since the year 1837, in the court house at Georgetown, where the circuit court held its sitting at the May term, 1864. In the last named year the court met on the 2nd day of May, and continued its sessions until the 7th day of said month, on which day it adjourned to court in course. On the 5th day of that term the sale under consideration took place. It further appears that the county court met at Georgetown August 1st, 1864, and adjourned until August 15th, 1864, on which day the following order was made, “Ordered that the clerk of this court be required to move the records and papers of the circuit and county courts to St. Louis, and that the office of the clerk of the courts be removed temporarily to Sedalia, until otherwise ordered by the court.” Said court upon the same day adjourned to meet in Sedalia on Monday August 29th, 1864, and afterwards met at said place pursuant to adjournment.

The act of February 15th, 1864, is manifestly the work of an unpracticed draughtsman, and is conspicuously deficient in congruity and completeness; and it may well be doubted, when all its provisions are considered, whether an immediate, absolute and unconditional removal of the county seat was ever intended.

In view of the general laws in relation to the removal of county seats, and the organization of new counties and the erection of county buildings, which have been in force in this State from an early day, a county seat without a court house and jail would be quite an anomaly. Indeed, a general law which has been in force, certainly since 1835, and perhaps longer, requires that a good and sufficient court house and jail shall be erected at the seat of justice of each county, and in case of a change of the county seat, the circuit court is required to continue its session at the old county seat until convenient buildings for holding the...