Burgess v. Donoghue

• Decision Date: 20 December 1886
• Parties: BURGESS v. DONOGHUE and others.
• Court: Missouri Supreme Court

2 S.W. 303

90 Mo. 299

BURGESS v. DONOGHUE and others.

Supreme Court of Missouri.

December 20, 1886.

APPEAL — POWER OF TRIAL COURT PENDING APPEAL.

An appeal from a judgment declared to be a charge and lien upon certain real estate therein described, on which a special execution was ordered, authorizing the sale of the whole of the land, or so much as might be necessary to pay the debt, although no supersedeas bond was given, takes the case out of the jurisdiction of the court which rendered the judgment, and, pending the appeal, an order cannot be made by that court vacating the judgment and setting aside the sale.

Error to circuit court, Cape Girardeau county.

Motion to vacate a judgment pending an appeal, and to quash an execution which had been issued upon it. Judgment for defendants. Plaintiff in the action appealed.

R. B. Oliver and S. M. Green, for plaintiff in error. R. H. Whitelaw, for defendant in error.

NORTON, J.

This case is here by writ of error from the judgment of the circuit court of Cape Girardeau county, sustaining a motion to set aside sheriff's sale, quashing the execution under which the sale was made, and vacating and annulling the judgment on which the execution issued. It appears from the record that at the August term, 1880, of the Cape Girardeau circuit court, a judgment was rendered in a suit wherein William Burgess was plaintiff, and Ruth O. Donoghue et al. were defendants, in favor of plaintiff for $291.40, which was declared to be a charge and lien upon certain real estate therein described, and a special execution ordered, authorizing the sale of the whole of it, or so much as might be necessary to pay the debt; that on the twenty-seventh of November, 1880, the defendants filed affidavit praying for an appeal to this court, which was allowed. It does not appear that any bond was given. On this appeal the judgment of the circuit court was affirmed by this court at its October term, 1881. It further appears that on the eighth day of March, 1881, special execution was issued, and placed in the hands of the sheriff; that on the third of May, 1881, a motion to quash this execution was overruled by the circuit court; and on the fourth day of May, 1881, the sheriff executed the writ by selling a portion of the property upon which the judgment was declared to be a charge. On the same day the sale was made defendants filed their motion to set aside the sale, mainly on the ground that the judgment or decree under which...