Gilbert v. Renner

• Decision Date: 19 March 1888
• Citation: 7 S.W. 479,95 Mo. 151
• Parties: GILBERT v. RENNER.
• Court: Missouri Supreme Court

7 S.W. 479

95 Mo. 151

GILBERT v. RENNER.

Supreme Court of Missouri.

March 19, 1888.

JUDICIAL SALES — MOTION TO SET ASIDE — COUNTY COURTS — CIRCUIT COURTS.

In the state of Missouri, a circuit court has no jurisdiction to hear a motion to set aside a sale made under an order and judgment emanating from the county court.

Appeal from circuit court, Audrain county; ELIJAH ROBINSON, Judge.

M. Y. Duncan, for appellant.

NORTON, C. J.

This case is before us on defendant's appeal from a judgment of the circuit court of Audrain county sustaining plaintiff's motion to set aside a sheriff's sale of land made to defendant under an order of the county court of said county. It appears that in 1879 one David Gilbert executed a school-fund mortgage to Audrain county on the land in question to secure the payment of certain school money borrowed by him, by the terms of which it was agreed that if default should be made in the payment of the principal or interest, or any part thereof, when the same should become due and payable, that the then acting sheriff should have power without suit, after advertising the property as therein provided, to sell and convey the same to the purchaser. It appears that said Gilbert having made default in the payment of the debt secured by the mortgage, the county court of said county, on the 8th of May, 1885, after reciting in an order the mortgage, the land conveyed by it to secure the payment of school-fund bond given by Gilbert, and his default in its payment, ordered and directed the sheriff to foreclose said mortgage and sell the property conveyed by it for so much as would be necessary to pay the debt, interest, and cost. Under this order the sheriff proceeded to advertise the property, and on the 5th of June, 1885, sold the same at public vendue, at the court-house door, during the sitting of the circuit court, to the defendant, and executed, acknowledged, and delivered him a deed to the land sold. The sheriff made report of sale under said order to the county court. On the 24th of June, 1885, plaintiff, C. A. Gilbert, a stranger to the proceeding in the county court, claiming to have bought 20 acres of the land of said D. Gilbert, after his mortgage to the county, and previous to the sale made by the sheriff, filed his motion in the circuit court of Audrain county to set aside the sale and deed made to defendant, on various grounds, not necessary, under the view we take of the case, to be stated. This motion was resisted by ...