Force v. Van Patton

• Decision Date: 28 March 1899
• Citation: 50 S.W. 906,149 Mo. 446
• Parties: FORCE v. VAN PATTON et al.
• Court: Missouri Supreme Court

50 S.W. 906

149 Mo. 446

FORCE v. VAN PATTON et al.

Supreme Court of Missouri, Division No. 2.

March 28, 1899.

EXECUTION — MOTION TO QUASH — TITLE TO REALTY — JURISDICTION — APPEAL — BILL OF EXCEPTIONS.

1. The appellate court cannot review an order on a motion, unless the motion is preserved in the bill of exceptions.

2. A motion to quash an execution issued on a judgment enforcing a mechanic's lien is not a case involving title to realty, within the constitutional provision declaring that appeals may lie from courts of appeal to the supreme court where title to realty is involved; since, to give the court jurisdiction, a contest, such as an action of ejectment to remove cloud or set aside a conveyance, must arise.

3. A motion to set aside a sale under execution is too late after the term at which the sale occurs has passed; the remedy being by bill in equity.

4. The jurisdiction of the court as to the amount involved in a proceeding on a motion to set aside an execution is regulated by the face of the execution.

Appeal from circuit court, Jackson county; John W. Henry, Judge.

Action by Charles F. Force against Alonzo Van Patton and others. From a judgment denying their motion to quash an execution, defendants appealed to the Kansas City court of appeals, which reversed the judgment. Plaintiff moved a transfer to the supreme court, which motion was sustained. Remanded.

Kinley & Kinley and Jones & Jones, for appellants. N. F. Heitman and Deatherage & Young, for respondent.

SHERWOOD, J.

This cause has been transferred by the Kansas City court of appeals to this court on the ground that it involves the title to real estate. In order to determine whether this be so will be the subject of the present inquiry.

On August 7, 1890, a judgment was rendered before Allen, justice of the peace, in favor of one Rettig and against one Van Patton, and also against others who were interested in certain real estate covered by said mechanic's lien, and who afterwards received deeds from Kinley, the purchaser of said real estate on an execution issued on a judgment rendered by Allen for the sum of $49.90, and for the enforcement of his mechanic's lien against certain real estate. On the 30th of September, 1890, Rettig filed a transcript of his judgment in the circuit clerk's office. On February 26, 1892, execution issued on said transcript judgment, requiring the sale of the interest of Van Patton and other parties in the land bound by such mechanic's lien. On March 23, 1892, the sheriff sold the property in question to Kinley, making him a deed therefor on March 31, 1892, for the sum of $50, and he, in turn, sold to certain other parties, and made them a deed for the land thus bought. Two years thereafter, to wit, August 9, 1894, an execution issued out of the clerk's office of the circuit court for the sum of $663.25 in favor of Charles E. Force and against Van Patton, and also against others who were interested in the litigated property and who had received deeds from Kinley. This execution was issued on a judgment rendered on the 10th day of March, 1891, in the circuit court of Jackson county, in favor of Force, also to enforce a mechanic's lien. It seems that the mechanic's lien of Force was of equal value and validity to that of Rettig. After the issuance of this execution, defendants filed a motion to quash the execution issued on Force's judgment. This motion was denied by the circuit court, and defendants appealed to the Kansas City court of appeals, where the judgment was reversed, the cause remanded, and the lower court directed to grant the motion. The motion in this case was not preserved in the bill of exceptions; and, according to the rulings of this court, unless such motion is preserved in the bill, there is nothing for the appellate court to review. Railway Co. v. Carlisle, 94 Mo. 166, 7 S. W. 102; State v. Gee, 79 Mo. 313; Estey v. Post, 76 Mo. 411; Corby v. Tracy, 62 Mo. 511; Brown v. Foote, 55 Mo. 178; Loudon v. King, 22 Mo. 336; Christy's Adm'r v. Myers, 21 Mo. 112. The absence of this motion, then, constitutes a sufficient objection to considering any question connected with the consideration of such motion; for what were the grounds thereof, who can tell? But even if the motion were preserved as above indicated, still its consideration would not involve the title to real estate, and for these reasons:

1. We have frequently decided, in proceedings to enjoin sales of land under execution on the ground that such sales would cast a cloud on the title, that suits to foreclose...