Dougherty v. McKeever, 34661

• Decision Date: 23 October 1973
• Docket Number: No. 34661,34661
• Citation: 502 S.W.2d 430
• Parties: Paul DOUGHERTY, Plaintiff-Appellant, v. Thomas McKEEVER et al., Defendants, and Bayshore Sanitation Company, Respondent. . Louis District, Division Two
• Court: Missouri Court of Appeals

Page 430

502 S.W.2d 430

Paul DOUGHERTY, Plaintiff-Appellant, v. Thomas McKEEVER et al., Defendants and Bayshore Sanitation Company, Respondent.

No. 34661.

Missouri Court of Appeals, St. Louis District, Division Two.

Oct. 23, 1973.

Motion for Rehearing or Transfer Denied Nov. 13, 1973.

Application to Transfer Denied Jan. 14, 1974.

Dearing, Richeson, Roberts & Wegmann, Nicholas G. Gasaway, Hillsboro, for plaintiff-appellant.

Thurman, Nixon, Smith & Howald, Hillsboro, for defendants-respondents.

DONALD E. DALTON, Special Judge.

This case is an appeal from an order of the trial court overruling a Motion to Set Aside a Sheriff's Sale in Partition. The original partition suit. The purchase price plaintiff and defendant some fourteen individuals as co-owners of the property in question. The purchaser at the partition sale, defendant-respondent Bayshore Sanitation Company, was not a party to the original partition suit. The purchae price was $5,000.00. The motion to set aside the sale was based originally upon two grounds: (1) That there was only one bid at the sale and (2) that the sale price was grossly inadequate. At trial plaintiff was granted leave to amend to add a paragraph 'in this respect, to show the additional circumstances of a possible misunderstanding between Mr. Dougherty (plaintiff) and myself (plaintiff's attorney)'.

The evidence revealed that the sale was proper in all respects including advertisement and was attended by plaintiff's attorney who also had sent specific notice of sale to all parties plaintiff and defendant.

Review in this case, tried without a jury, is as to both law and evidence, as in suits of an equitable nature, giving due regard to the trial court's opportunity to judge the credibility of the witnesses. A motion to set aside a judicial sale is addressed to the sound discretion of the trial court. The decisions of the trial court will not be set aside unless clearly erroneous.

As to inadequacy of price, the plaintiff presented the testimony of Mr. Phil P. Rush, a real estate broker, who, over objection, testified to a 'market value' of $20,000.00, but further testified that he was not familiar with any judicial sales in Jefferson County and that he had no knowledge of the valuation of property when sold at a judicial sale. He had never observed a judicial sale in Jefferson County. Mr. Louis Henry Dennis, also a real estate broker, testified on behalf of plaintiff. He gave the opinion of 'fair market value' at $20,000.00, again over objection of defendant. When asked a hypothetical question as to fair market value that the property should have brought at the sheriff's sale, he answered that it should have sold for $15,000.00 to $20,000.00. As to prior knowledge or experience in judicial sales, he referred to one sale some four years earlier of a house sold separate from the land on which it was located. He did not know what the sale price was. He testified that as between a sale handled and advertised by a real estate agent and a judicial sale for cash, as in the present instance, the price at the judicial sale on most occasions would be less. The indicated that he had a contract to sell the property in question for $15,000.00, which was subject...