Flinn v. Richardson

• Decision Date: 25 May 1928
• Docket Number: No. 26783.,26783.
• Citation: 7 S.W.2d 356
• Parties: FLINN v. RICHARDSON, Sheriff.
• Court: Missouri Supreme Court

7 S.W.2d 356

FLINN v. RICHARDSON, Sheriff.

No. 26783.

Supreme Court of Missouri, Division No. 2.

May 25, 1928.

Appeal from Circuit Court, Jackson County; Willard P. Hall, Judge.

Suit by W. F. Flinn against Fred A. Richardson, Sheriff of Jackson County. Judgment for plaintiff, and defendant appealed to the Kansas City Court of Appeals. Case transferred to Supreme Court. Remanded to Kansas City Court of Appeals.

John C. Nipp, of Kansas City, and Hewitt & Hewitt, of Maysville, for appellant.

E. C. Hamilton, of Independence, for respondent.

BLAIR, J.

This is an appeal from the circuit court of Jackson county in an action wherein that court granted an injunction against appellant. The appeal was granted to the Kansas City Court of Appeals. That court transferred the case to this court.

All of the facts essential to the question of our appellate jurisdiction are set forth in the opinion of the Kansas City Court of Appeals. We quote therefrom as follows:

"The action arose out of the following facts: Plaintiff, a resident of Jackson county, Mo., on September 6, 1920, purchased a farm of 80 acres located in said county, and received therefor a warranty deed, and of which land plaintiff held uninterrupted possession until on or about November 23, 1923, at or about which time an execution was issued out of the circuit court of Clinton county, Mo., directed to the sheriff of Jackson county, the defendant herein. Said execution was based upon a judgment theretofore rendered against one David W. Flinn in said Clinton county circuit court. The defendant, in carrying out said execution, levied upon the farm of plaintiff herein, and advertised said farm for sale.

"Thereupon plaintiff served upon defendant written notice, duly verified, advising defendant of the ownership in plaintiff of said farm; and that the judgment debtor, David W. Flinn, had no right, title, or interest in or to, or any claim against said property, and thereafter filed in the circuit court of Jackson county his petition for injunction. The court then issued a temporary injunction restraining defendant sheriff from proceeding against said property until further order of the court. At the March (1924) term of said court at Independence, defendant sheriff filed his motion to quash the temporary injunction. As grounds therefor the sheriff alleged: (1) That the petition on its face shows that the judgment upon which the execution was issued was allowed and entered of record in the circuit court of Clinton county; (2) that the restraining order was issued by this court restraining defendant from executing the said writ; (3) that the court is without jurisdiction to issue such restraining order; and (4) that the issuance of the restraining order is the sole and primary cause alleged.

"The motion to quash was overruled by the court, to which action defendant duly excepted. Defendant refused to plead or appear further in the case.

"The cause coming on to be heard, plaintiff appeared in person and by his attorney, but defendant defaulted; whereupon the court entered its judgment herein finding that plaintiff W. F. Flinn, in good faith, purchased the land in question, and that he is the rightful owner thereof; that defendant wrongfully levied upon said described real estate as the property of David W. Flinn; that said David W. Flinn at no time had, or claimed to have, any right, title, interest, or estate in said described property; and that the plaintiff, W. F. Flinn, is and was at the time of the said levy the sole owner thereof. And further the court found that W. F. Flinn is entitled to a permanent injunction against the defendant sheriff, his agent, deputies, and representatives, perpetually restraining and enjoining them from selling, or attempting to sell, and from levying or attempting to levy upon, the said property. The temporary injunction was...