Brown v. Henderson

• Citation: 1 Mo. 134
• Parties: BROWN v. HENDERSON.
• Decision Date: 31 October 1821
• Court: United States State Supreme Court of Missouri

1 Mo. 134

BROWN

v.HENDERSON.

Supreme Court of Missouri.

October Term, 1821.

APPEAL FROM THE JUDGMENT OF ST. LOUIS CIRCUIT COURT.

COOK, J.

The appellee obtained a rule in the Circuit Court upon the appellant, to show cause why he should not pay over to the appellee (to the use of Joseph Jones), the residue of the sum of $2,550, made by the appellee as late Sheriff of the county of St. Louis, by virtue of two executions, issued out of the Clerk's office of said county, returnable to the August term of said Circuit Court, in the year 1819, at the suit of Gabriel Long against said Henderson, one for $950, and the other for $654. The defendant showed cause, that besides the two executions in the rule mentioned, another execution had previously issued from the said Clerk's office, directed to the sheriff of said county, against the said Henderson, at the suit of Gabriel Long, which execution recited that the said Long had, in the Clerk's office of said county, before the said Clerk, recovered of the said Henderson by confession the sum of $1,200, &c., and that by virtue of this, as well as the writs of execution in the rule mentioned, he had levied upon a house, &c., the property of the said Henderson, and had paid the money arising from the sale thereof over, according to the commands of the said several writs; first satisfying the two writs mentioned in said rule, and applying the balance in discharge of the last mentioned execution. He further objected that the remedy, by motion, was not given by statute against a sheriff for money collected, on sale, to the use of the defendant in the execution. Whereupon, the Circuit Court ordered the said Brown, late sheriff, &c., to pay over to the said Henderson the sum of $773 83 1/2, it being the balance in his hands after paying the two executions first above recited, &c., from which order the said Brown appealed to this Court.

To reverse this judgment, the appellant relies upon two positions: first, that the remedy by motion in such case, is not warranted by the statute; and, secondly, that the sheriff was warranted in collecting and paying over the moneys according to the command of the writ of execution, by him last recited, notwithstanding the same issued on a void judgment.

We shall first consider the last point. A general rule, supported by a series of uniform decisions, is, that the sheriff is not to dispute the authority of the Court, out of which any writ, process, &c., issues, but he is to execute all such writs, &c., as are directed to him, according to the command thereof (6 Bac. 166, and cases there cited). This rule, however, applies only...