Groner v. Smith

• Decision Date: 31 January 1872
• Citation: 49 Mo. 318
• Parties: JESSE GRONER, Appellant, v. BENJAMIN D. SMITH, Respondent.
• Court: Missouri Supreme Court

49 Mo. 318

JESSE GRONER, Appellant,

v.BENJAMIN D. SMITH, Respondent.

Supreme Court of Missouri.

January Term, 1872.

Appeal from Polk Circuit Court.

F. P. Wright, E. J. Smith and W. P. Johnson, for appellant.

I. The sheriff's deed to Smith is void on its face and conveys no title. A deed conveying land by virtue of a power must show on its face that the power exists and has been strictly pursued. (Curtis v. Doe ex dem., Breese, Ill., 99; Williams v. Payton, 4 Wheat. 77; Lackey v. Lubke, 36 Mo. 121; Hardy v. Heard, 14 Ark. 185.) The sale shows that in this case the deed was made after the return term, when the writ was functus officio and dead. (Smith v. Mundy, 18 Ala. 182.)

II. It is a principle of universal justice that a judgment shall not be rendered against a person, and his property condemned and sold without notice. When this publication was made, in 1863, Groner was in the Confederate lines; and may it not be said here, as in the case of Dean v. Nelson, 10 Walker, 172, that “a notice directed to him and published in a newspaper was a mere idle form,” and “as to him, the proceedings were wholly inoperative and void”?

III. There was no legal evidence that the clerk ever made an order of publication. The printer's affidavit may have been sufficient to prove that he printed the order read in evidence, but not to prove that the clerk actually made the order which was published. The order which the law requires the clerk to make must of course be in writing, and that should have been preserved or its absence accounted for, and in that event its contents proven. This want of proof is not cured by any recitation in the judgment.

IV. The defendant, in support of his deed, relies upon a supposed judgment in favor of Harris against Groner as having been rendered in October, 1863. There was no judgment then entered. It was a bare finding and assessment of the damages; nor was there any judgment entered when the execution issued under which the sale took place. It is submitted whether an execution could legally issue until a judgment was entered up. It is true that in May, 1870, nearly seven years after the assessment of damages, defendant Smith, not a party in the case of Harris v. Groner, appears in court, without any notice to Groner, and suggests that he is a purchaser of the land sold under an execution in that case, and asks that a judgment be entered nunc pro tunc, which was then done by the court. The objections to this proceeding are: (1) The defendant in this case (Smith) acquired no control over the judgment by the mere act of purchasing land sold under it. This act gave him no standing in court. (2) A judgment could not, at any time after the term, be entered without notice to Groner, and no notice was given to him on this point. (Martin et al. v. Bank of the State, 20 Ark. 336; Wheeler v. Goff, 24 Texas, 660.) No judgment can be entered nunc pro tunc, or amendment of a judgment be made, in a case commenced by attachment and publication where judgment was rendered by default. After the term is passed at which a judgment is rendered, no alteration or amendments can be made except such as are authorized by the statute of jeofails and amendments. (See Ashley v. Glasgow, 7 Mo. 320; Hill v. The City of St. Louis, 20 Mo. 584; Brewer v. Dinwiddie, 25 Mo. 351; Hobart v. Pacific R.R. Co., 32 Mo. 423; 45 Mo. 131.) And the statute of jeofails does not apply to judgments by default. (See Neidenberger v. Campbell, 11 Mo. 359; R. S. 1835, p. 468, § 7; R. S. 1845, p. 827, § 7; R. C. 1855, p. 1255, § 19; Wagn. Stat. 1036, § 19.)

V. The execution laws of 1855 and 1863 (R. C. 1855, p. 748, § 54; Sess. Acts 1863, p. 20, § 2) have no application to special executions where no levy is necessary, and where the lien is not created by the levy. Those statutes are only to keep in force liens that have been acquired by virtue of a levy of the executions; and the lien, by virtue of the proceedings in Harris v. Groner, occurred by the levy of the writ of attachment, and not by the execution at all. (See Bank of the State v. Bray, 37 Mo. 194; McDonald v. Gronefeld, 45 Mo. 28.)

VI. The land being sold by the sheriff by virtue of a previous levy, after the return day of the execution and without any new process issued to him for that purpose, the sale is void and the purchaser acquires no title. (Morgan v. Rumsey, 15 Ala. 193; Doe ex dem. v. Renney, 4 Hawks, N. C., 279; Carsh v. Tozer, 1 Watts & Serg. 525; Hall v. Hall, 5 Verm. 3, 4; Downer v. Hagen, 10 Verm. 418.)

Abbe and J. S. Phelps, for respondent.

I. The sheriff's deed is sufficiently sealed. The testimony reads, “have hereto set my hand and affixed my seal.” The sheriff adopts this as a scrawl: ““(Seal.)” This is a sufficient scrawl. (Wagn. Stat. 269, § 5; Underwood v. Dollins, 47 Mo. 259.)

II. The court had the power to enter a judgment nunc pro tunc. The court has the inherent power to correct the mistakes and supply the defects of its clerk. (Wagn. Stat. 1034, § 6; Balch et al. v. Shaw, 7 Cush. 282; Hyde v. Curling et al., 10 Mo. 359; State v. Clark, 18 Mo. 432; Glass v. Glass, 24 Ala. 468; Allen et al. v. Bradford et al., 3 Ala. 281; Frink v. Frink, 43 N. H. 508; DeKalb County v. Hixon et al., 44 Mo. 341; Gibson v. Chouteau's Heirs, 45 Mo. 171; Chichester v. Cande, etc., 3 Cow. 39; Fay v. Wenzell, 8 Cush. 315.) The sheriff's amendment was properly made. (Webster v. Blount, 39 Mo. 500; Scruggs v. Scruggs, 46 Mo. 272.) In the case of Scruggs the return of sheriff was amended by him twenty years after the transaction occurred.

ADAMS, Judge, delivered the opinion of the court.

This was an action of ejectment brought by the plaintiff Groner against the defendant Smith, for lands in Polk county. The Circuit Court gave judgment for defendant, and the plaintiff has appealed to this court. The petition and answer are in the usual form, the answer simply pleading the general issue.

Upon the trial the plaintiff showed title in himself, derived under patents from the United States, and proved rents and profits, and rested. The defendant relied on a sheriff's sale and deed to himself, under a judgment and execution in attachment against the plaintiff as a non-resident of the State, at the suit of one Harris. The writ of attachment was issued by the clerk of the court in vacation, on the 8th day of July, 1863, and on the same day was levied by the sheriff on the property in dispute as the property of the plaintiff; and the clerk, when he issued the attachment, made out on paper an order of publication against the plaintiff as a non-resident, which was published in the usual way. Instead of filing the original order of publication and sending out a copy for publication, the clerk sent out the original, which it seems was not returned to his office. At the return term of the writ of attachment, a judgment by default was rendered and made final, the suit being on promissory notes. But this judgment, although rendered, was not duly entered of record, but an informal entry was made, which, however, was sufficient to show that it was intended as a final judgment. In the year 1870 the defendant, who was purchaser at the execution sale, applied to the court to have the informal judgment entered in full nunc pro tunc, which was done. The defedant also had the sheriff amend his return on the execution by leave of the court, so as to show by such amended return the levy and failure to make sale at the first term of the court to which the execution was returnable, by reason of the court not being in session; and that after advertising, etc., he sold at the next term, and the defendant became the purchaser. There was no dispute but that the amended return recited the facts as they existed. The sheriff's deed, however, did not recite the reason why the sale was not made at the return term of the execution, and this was relied on as fatal to the deed. The plaintiff also objected to the sheriff's deed because, although in the testimonium he referred to its being sealed, yet the only seal or scrawl by way of seal was the word ““seal” in Roman letters included between brackets at the end of his name, thus: “[Seal.]”

The plaintiff also offered to impeach the sheriff's sale by showing that the defendant interfered with other bidders and prevented them from bidding, and he proved that the plaintiff, who was the defendant in the attachment suit, was within the Confederate lines from some time in 1861 to 1865; that he went to Texas in 1861, and was...