Clevenger v. Odle

• Citation: 49 S.W.2d 267,226 Mo.App. 1176
• Parties: CERENA CLEVENGER ET AL., RESPONDENTS, v. GEORGE ODLE ET AL., DEFENDANTS, AND RALPH B. HUGHES, GUARDIAN ET AL., APPELLANTS
• Decision Date: 02 May 1932
• Court: Court of Appeals of Kansas

49 S.W.2d 267

226 Mo.App. 1176

CERENA CLEVENGER ET AL., RESPONDENTS, v. GEORGE ODLE ET AL., DEFENDANTS, AND RALPH B. HUGHES, GUARDIAN ET AL., APPELLANTS

Court of Appeals of Missouri, Kansas City

May 2, 1932

Appeal from Circuit Court of Ray County.--Hon. Ralph Hughes, Judge.

REVERSED AND REMANDED.

Reversed and remanded.

E. A Faris and George W. Crowley for respondents.

A. P Hamilton and L. E. Bates for appellants.

OPINION

BLAND, J.

This is an appeal, by a portion of the defendants, from the judgment approving the report of sale and order of distribution in a suit for the partition of real estate. The appeal was allowed to the Supreme Court but that court transferred the cause here for lack of jurisdiction there. Nothing is brought here by the appellants but the record proper. This shows that the court, in October, 1928, ordered the sale "By the Sheriff of Ray County." The term of office of the then sheriff, Frank A. Williams, expired on January 1, 1929, but before the end of his term he received a certified copy of the order of sale and, for the purpose of the case, we may assume that he began the publication of the notice of sale. He made the sale, itself, on February 13 1929, after he had gone out of office. The report of sale, made on February 14, 1929, recites that the report was made by "Frank A. Williams, ex-sheriff of Ray county." The report was approved on February 18th of that year. It is agreed between the parties that Williams' term of office expired on the 1st day of January, 1929, and that he was duly succeeded by his successor in office.

Appellants insist that the sale was void, having been made by the ex-sheriff. Respondents say that the sale of the property was properly made by the ex-sheriff, because he received and retained a certified copy of the order of sale and published notice of sale thereunder prior to his going out of office and, when his term expired, he did not elect to turn the business over to his successor nor did the court make an order directing that such business be turned over to the latter. In support of this contention respondents cite the case of Fortune v. Fife, 105 Mo. 433, 16 S.W. 687.

Section 1588, being part of article 11, chapter 7, of our present statutes dealing with partitions of real estate and personal property, provides as follows:

"If any sale be made by any sheriff before he goes out of office, and the business is not completed when he ceases to be sheriff, he may do all subsequent acts, collect and pay over the money, and make the deed, in the same manner as if he continued to be sheriff, unless the court shall by order direct the business to be transferred to the next sheriff; in which case all acts remaining to be done by the sheriff, at the date of such order, shall be done by the sheriff then in office." (Italics ours.)

In the case of Fortune v. Fife, supra, the sheriff made the sale while in office but did not make a deed to the purchaser. The Supreme Court in that case said, l. c. 439, 440:

"It will be conceded without argument that but for this section (now section 1588) the incoming sheriff, as soon as he qualifies, would be invested with full power to take charge of and execute all the business remaining unexecuted in the office of sheriff; he alone would have power to do so, and it would be the duty of the outgoing sheriff to immediately turn over all unexecuted process and business appertaining to the office to him. For obvious reasons in partition proceedings, sometimes protracted through a number of years, it will often happen that the sheriff who commenced and transacted a part of the business could best protect his interest and that of his surties by being permitted to wind it up.

"It was the evident purpose of this statute to confer upon him the privilege of so doing, unless the court should otherwise order. But it was not the purpose of this act to compel him to discharge these duties of the sheriff after his term of office had expired, unless he elected to do so. The court could order him to turn the business over to his successor whether he desired to retain it or not. If no such order was made he could either...