City of St. Louis v. Brooks

• Citation: 18 S.W. 22,107 Mo. 380
• Parties: CITY OF ST. LOUIS v. BROOKS et ux.
• Decision Date: 07 December 1891
• Court: Missouri Supreme Court

18 S.W. 22

107 Mo. 380

CITY OF ST. LOUIS v. BROOKS et ux.

Supreme Court of Missouri, Division No. 1.

December 7, 1891.

APPEAL — RECORD — MOTION FOR NEW TRIAL — EXCEPTIONS.

1. The rule that to enable the supreme court to review the rulings of the trial court, made during the progress of a cause, the attention of the court must be called to its rulings in a motion for a new trial, does not apply to the rulings of a trial court on motions made after final judgment, as to set aside an execution sale. Bishop v. Ransom, 39 Mo. 417, overruled.

2. In order to review, on appeal, a ruling upon a motion made after final judgment, as to set aside an execution sale, an exception must be taken at the time the ruling is made, notwithstanding a motion for a new trial is not necessary.

Appeal from St. Louis circuit court; L. B. VALLIANT, Judge.

Action by the City of St. Louis against John T. Brooks and wife to enforce a special tax-bill. Defendants appeal from an order denying a motion to set aside an order confirming the sale on execution to Lydia C. Brown and denying a rehearing. Affirmed.

F. A. C. McManus and T. P. Bashaw, for appellants. P. W. Provenchere and F. H. Bacon, for respondent.

BLACK, J.

This case is now before us on the appeal of Lydia C. Brown and her husband to review the action of the circuit court in setting aside an execution sale. The suit was instituted by the city of St. Louis against John T. Brooks to enforce a special tax-bill for $37.20 against a lot having a frontal of 31 feet, owned by Brooks. There was no personal service of process upon him, he being a nonresident, but he was duly notified by newspaper publication. Final judgment by default was entered in April, 1888, on which a special execution was issued, dated the 14th June of that year, returnable to the following October term. The sheriff sold the property under this execution on the 7th July, 1888, and Lydia C. Brown became the purchaser at the sum of $101. At the October term, and on the first day thereof, Brooks appeared and moved to set aside the sale for the following reasons: That he was a non-resident and had no actual notice of the suit; that the property, which was sold for $101, was reasonably worth $1,500; and because the sheriff's advertisement of the sale was irregular, in this: that he thereby stated he would sell the property "by virtue and authority of a special execution on special tax-bill, issued from the office of the clerk of the circuit court," etc., instead of saying he would sell the property by virtue of a special execution issued on a judgment, etc. Lydia C. Brown and her husband were duly notified of the filing of the motion, and appeared and resisted the same. The court on proof of the matters stated in the motion made an order on the 12th November that, upon the payment of $101 and costs into court by Brooks within 10 days, for the use of Lydia C. Brown, the motion would be sustained. Brooks made deposit of the money, and on the 20th of the same month the court sustained the motion, and thereby set aside the sale. No exceptions were taken or saved to either of these orders; but within four days Mrs. Brown and her husband filed a motion to set aside the orders, and for a rehearing, which motion was overruled at the following...