Harris v. Chouteau
| Decision Date | 31 January 1866 |
| Parties | JOHN S. HARRIS, Plaintiff in Error, v. BERANICE F. CHOUTEAU et al., Defendants in Error. |
| Court | Missouri Supreme Court |
Error to Kansas City Common Pleas Court.
Douglas & Gage, for plaintiff in error.
The only question arising on the record is as to the notice required by section 46 of the (R. C. 1855, p. 746.) Under the facts of this case, was such notice necessary? The said section was evidently intended for the protection of defendants, who owned lands in counties other than that in which judgment was rendered. It was to prevent property being sold secretly and at a sacrifice, without the knowledge of debtor defendants. In cases where the execution issues to the same county in which the defendant is resident, no such notice is required, for the obvious reason that the process being in the ordinary course of law, the defendant is presumed to have knowledge of it. In that case the execution issues as a matter of course, and without any special directions from the plaintiff. It is done by the clerk as one of the duties of his office, and its performance is always expected by both plaintiffs and defendants. But a clerk never issues an execution to another court than his own unless he is so directed by the plaintiff. (§§ 8 & 9 Execution Act.) It is out of the ordinary course of proceeding. The defendant is not presumed to know anything about it. It is done at the instance of the plaintiff, and therefore, to prevent any surprise, fraud or injustice, on the defendant, the law very properly requires notice of the execution in such cases. In the one case the issuance of the execution is the act of the law, in the other it is the act of the plaintiff. In the first case notice is not required, in the last it is. Where, then, the defendant is presumed to know that an execution has been or will be issued, no notice is required, and it is only necessary where such presumption does not arise.
Nor is a case in which the defendants, at the commencement of the suit, resided in the county where judgment was rendered, and the land levied on is situated, but became non-resident after the suit commenced, within the mischief, the reason, or spirit of the law. The mischief intended to be remedied was the sacrifice of a debtor's land, by sales made without his knowledge. Where he has such knowledge there can be no such mischief. The debtor himself can publish the fact, or attend the sale and compel that competition in bidding which will result in a fair sale and an adequate consideration. If he does not, it is his own neglect and he cannot complain.
Where, then, from the nature of the proceeding, the defendant is presumed to have knowledge of what county the execution is to be levied in, no notice is necessary. In such cases knowledge is notice. (2 Eq. Lead. Cas., Pt. 1, p. 115; Hobein v. Murphy, 20 Mo. 447.)
The only question presented in this case is the proper construction to be given to the 46th section of the (1 R. C. 746.)
It appears from the record that one Guinotte commenced a suit against the defendants in the Common Pleas Court of Kansas City; the defendants were then all residents of Jackson county, and personally served with process. They all appeared and defended the action, and judgment was rendered against them and in favor of the plaintiff, at the June term, 1860, of the Common Pleas Court. Execution was issued on the said judgment, returnable to the then next October term of said court, and levied on the same property now in controversy here. The defendants then appealed from the judgment of the Common Pleas Court to this court, and obtained a stay of execution; and this court, at its July term, 1863, affirmed the judgment, and remitted the record, with their decision, to the court below. Execution again issued...
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Young v. Schofield
...held that on timely application by the defendant, the sale which occurred should have been set aside. Next followed the case of Harris v. Chouteau, 37 Mo. 165, where the parties plaintiff and defendant resided in Jackson county. Plaintiff sued defendants, had personal service on defendants,......
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Castleman v. Relfe
...plaintiffs would be in no danger of losing the land. (Draper et al. v. Bryson, 17 Mo. 71; Shields v. Powers, 29 Mo. 315; Harris et al. v. Chouteau et al., 37 Mo. 165; Thompson v. Tolmie, 2 Pet. 157; Voorhees v. Bank of U. S., 10 Pet. 474; Grignon's Lessee v. Astor, 2 How., S. C., 343; Gray ......
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Young v. Schofield
...held that, on timely application by the defendant, the sale which occurred should have been set aside. Next followed the case of Harris v. Chouteau, 37 Mo. 165, where the parties plaintiff and defendant all resided in Jackson county. Plaintiff sued defendants, had personal service on defend......
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Lohman v. Stocke
... ... 290; ... Little v. Eddy, 14 Mo. 160; Byrne v ... Becker, 42 Mo. 264; Ducker v. Chambers, 57 Mo ... 575; Rumbolds v. Parr, 51 Mo. 592; Chouteau v ... Sherman, 11 Mo. 585; Dougherty v. Cooper, 77 ... Mo. 532; Hurley v. Taylor, 78 Mo. 238. A party in ... failing circumstances may, with an ... on land in a county different from that in which the judgment ... was rendered and execution issued. Harris v ... Chouteau, 37 Mo. 165; Buchanan v. Atchison, 39 ... It ... appears from the record that, in January, 1878, defendant, ... ...