Hicks v. Ellis

• Decision Date: 30 April 1877
• Citation: 65 Mo. 176
• Parties: HICKS v. ELLIS ET AL. APPELLANTS.
• Court: Missouri Supreme Court

65 Mo. 176

HICKS

v.ELLIS ET AL. APPELLANTS.

Supreme Court of Missouri.

April Term, 1877.

Appeal from Jackson Circuit Court.

F. M. Black & A. Comingo for appellants.

1. Venditioni exponas was the proper writ to preserve the lien created by the levy of the fi. fa. Porter v. Mariner, 50 Mo. 364; Lackey v. Lubke, 36 Mo. 115; Herm. on Ex. 26, 331.

2. It is not necessary that the venditioni exponas be issued at the return term of the fi. fa. Smith v. Spencer, 3 Ired. 256; Taylor v. Doe, 13 How. 287.

3. The vendi. was kept alive until a term of the Jackson Circuit Court was held by the act of March 23, 1863, and especially the 3rd section. The term ““execution,” as used in the act, is broader than and includes writs of venditioni exponas. 1 Bouvier Law Dict. 495; 2 Ib. 621; Wag. Stat. 601, § 1. It is also claimed that this act keeps alive only such writs as had been levied, and does not affect this one, because it had not been levied. The very nature of the writ precludes the necessity of a levy, and this writ comes within the object of the statute. Wood v. Messerly, 46 Mo. 255; Stewart v. Severance, 43 Mo. 322; McDonald v. Gronefeld, 45 Mo. 28; moreover the “ fi. fa.” was first levied, property advertised for sale, and the vendi. issued to complete the sale, and was a part of the original levy, and the fi. fa. and vendi. are to be taken together, and come within the literal language of the statute. Herm. on Ex. 331.

4. While the sheriff's deed of March 15, 1865, calls the writ under which the sale was made an “alias execution,”--yet it recites the judgment, execution, levy, failure to make sale, and the reasons therefor, the order and the substance thereof and the issue of writ thereunder--and is sufficient. The Jackson Circuit Court was suspended by operation of law. Acts 1860 and 1861, p. 510; Acts 1863, pp. 154, 161; Acts 1863-4, pp. 296, 297.

5. The issuance of execution to sheriff of Howard county in August, 1862, was no abandonment of the levy in Jackson county. Rev. Stat. 1855, p. 737, §8.

6. There is nothing in the record offered by the plaintiff to show how the special term was called, nor to show that it was not an adjourned term. It does not purport to give any of these proceedings. The presumption is that it was rightfully held.

Russell Hicks respondent p. p.

1. The Howard Circuit Court had no jurisdiction of the original process offered in evidence, nor of the person of defendant Maughs. The judgment does not recite that he was served with process, and the summons shown in the transcript is defective. The statute (R. S. 1855, p. 1222, § 6), prescribes the requisites of this writ: 1st, that defendant be summoned to appear in Court; 2nd, that it be on the return day of the writ; 3rd, at a place to be specified in such writ. None of these things were done in this supposed summons. Bush v. Doy, 1 Kansas 86; Bobb v. Graham, 4 Mo. 223; Wragg v. The Bank, 8 Porter (Ala.) 196. The defendants in that suit had a right to insist on the notice required by the statute; that not having been given was a fatal defect, and rendered the sale void. Coffin v. Field, 7 Cush. 359; Clark v. Lewis, 35 Ills. 422; Cook v.Gibbs, 3 Mass. 195; Gould v. Barnard, 3 Mass. 199; Streeter v. Frank, 4 Chand. (Wis.) 94; Shrewsbury v. Mt. Holley, 2 Vt. 220; Hollingsworth v. Barbour, 4 Pet. 474.

2. The Howard Circuit Court, at the special term in January, 1863, had no jurisdiction to make the order for the vendi., and the writ issued thereunder was void. Rev. Stat. 1855, p. 540, §§ 47 to 53; Dulle v. Deimler, 28 Mo. 583; Williams v. Cable, 7 Conn. 123; White v. Riggs, 27 Me. 114. The recital of a special term in the transcript must be taken as true, unless contradicted by some other part thereof. Hahn v. Kelley, 34 Cal. 392. This was not done. The power conferred by the venditioni exponas was special and limited in point of time to the return day thereof, and the sale made long after the return day thereof was void. Rogers v. Cawood, 1 Swan 142; Overton v. Perkins, 10 Yerger 331; Barden v. McKinnie, 4 Hawks 282; Lackey v. Lubke, 36 Mo. 122; Lessee of Glancy v. Jones, 4 Yeates 214.

3. The provisions of the special act of 1863 have no bearing on the original execution issued to Jackson county, and the original levy made thereunder, or the vendi. under which the sale was made. The first section does not apply to it, because it was issued before the passage of the act; nor does the second section, because the writ was not levied, and could not have been levied on the land; nor did it nor could it continue any lien on the land. The lien was created by virtue of the levy under the original execution, and continued under that execution until abandoned or discharged. That lien was in nowise affected by the vendi. It was neither extended nor shortened. Nor does the third section apply. The vendi. was not and could not be levied, and as no levy was made, none could remain by force of the vendi.; and as the act made no provision where a sale under a vendi. should be had, the time of sale thereunder remained as theretofore fixed by the statute and common law, and neither gave the sheriff any authority to sell after the return day of the vendi. The office of a vendi. is to secure to a judgment creditor the benefit of a levy and a lien thereby created, when from some cause other than his own fault or negligence a sale could not be made before the return day of the original writ. Cox v. Joiner, 4 Bibb 95; Irwin v. Buckle, 3 Bibb 344-5; Bellingall v. Duncan, 3 Gillman 447. This vendi. was a simple command to sell the land already levied upon. Its authority ceased on and after the return day thereof.

4. The issuing to the sheriff of Howard county an alias execution, after the levy of original, and before the vendi. issued, was an abandonment of the first levy, and the sale made under the vendi., on the levy thus abandoned, communicated to the purchasers no title. Alley v. Carroll, 3 Sneed 110; Eckhols v. Graham, 1 Call. 492; Amyett v. Backhouse, 3 Murphy 67

HOUGH, J.

This was an action of ejectment. Both parties claimed title through G. M. B. Maughs; the plaintiff by direct conveyances from said Maughs, executed in 1868 and 1873, and defendant by a sale under execution against said Maughs, made in 1865. Whether the sale under execution was a valid one, and passed the title of said Maughs to the property in controversy, is the question presented for our determination. In April, 1860, suit was instituted in the Circuit Court of Howard county by Nancy Carrole v. James H. Reed, J. D. Smith and G. M. B. Maughs, on two promissory notes executed by them. Service was had on Smith in Howard county. The following writ directed to the sheriff of Jackson county, accompanied with a copy of the petition, was served according to law:

STATE OF MISSOURI,

)

)

Sct.

COUNTY OF HOWARD.

)

State of Missouri to the Sheriff of Jackson County, greeting:

We command you to summon James H. Reed and G. M. B. Maughs to be and appear before the Judge of the Howard County Circuit Court at Fayette, in Howard county, on the first Monday of June next, and answer the foregoing petition of Nancy Carrole, plaintiff, and have you then and there this writ. Witness Charles H. Stewart, clerk of the said court, under the seal thereof, at office in Fayette, on the 24th day of April, 1860.

[L. S.]

C. H. STEWART, Clerk.

On the 10th day of December, 1860, final judgment by default was rendered against all the defendants. Execution was issued on this judgment on the 31st day of January, 1861, directed to the sheriff of Jackson county, returnable on the first Monday of December following, which was levied upon the land in controversy, and duly returned with said levy indorsed, no court having been held in Jackson county prior to the return day of said writ, at which said land could be sold. On the 1st day of August, 1862, execution was issued to the sheriff of Howard county, which was returned unsatisfied. On the 19th day of January, 1863, in pursuance of an order made by the Howard Circuit Court on the 3rd day of said month, reciting the levy and failure to sell under the execution issued in 1861, a writ of venditioni exponas, returnable to the second succeeding term, was issued to the sheriff of Jackson county, by virtue of which said sheriff advertised and sold the property in controversy on the 15th day of March, 1865, no term of the circuit court having been held in said county of Jackson prior to that time. At said sale the defendant Mastel and one Ellenberger became the purchasers, and received a deed from the sheriff. In 1867 Ellenberger conveyed his interest to Mastel, under whom the other defendants claim possession. The regular time for holding the circuit court in Howard county during the years in which the foregoing proceedings occurred was on the first Mondays of June and December. The term at which the writ venditioni exponas was ordered is thus designated in the entry of record: “Howard Circuit Court, special term, January 3rd, 1863. At a special term of the Howard Circuit Court, begun and held at the court-house in the City of Fayette, Howard county, Missouri, on the 3rd day of January, 1863, were present Hon. George H. Burkhart, Judge of said court, &c.,” then follows the order of vendi. A duly certified transcript of all the foregoing proceedings in the circuit court of Howard county and a certified copy of the sheriff's deed were offered in evidence, but were excluded by the court on the following objections made by the plaintiff:

1st. Judgment against Maughs and others was and is absolutely void, said court having no jurisdiction over the person of said defendant, as appears by the record offered in evidence.

2nd. The Howard Circuit Court had no jurisdiction to order a venditioni exponas at the special term held in January, 1863; said order and writ were nullities, and gave the sheriff no power to sell.

3rd. Even if said vendi. was regularly issued, the sheriff could not sell the land...