Higdon v. Conway
| Decision Date | 31 October 1848 |
| Citation | 12 Mo. 295 |
| Parties | HIGDON v. CONWAY. |
| Court | Missouri Supreme Court |
CARROLL, for Plaintiff. The only question in this case is, will an execution confessedly without any judgment to support it, justify an officer who seizes it and sells property in virtue of it. I accede the authorities go to the extent of saying that if an execution is sound on its face, and the court be a competent court to try the cause, a simple exhibition of his writ, without anything to rebut it on the other side, is conclusive for his defense. But there is no case on record which is known to me, or within the reach of my investigation, which will go so far as to justify an officer in taking property, under a writ, that is an absolute nullity. In the case now at bar, the so-called writ was a mere blank piece of paper. That it had the form of a writ, and was called by that name, is hardly sufficient to make it a writ. This so-called writ recites a falsehood, it recites or undertakes to recite a judgment which never was reversed, and which has no existence except in the imagination of the man who wrote it. This was admitted at the trial, and the bill of exceptions shows the fact to be so. Can it be that a paper confessedly without any legal existence, utterly and absolutely void, can it be that such a paper will warrant the seizure and sale of property of a man against whom no judgment has been rendered, who has never had any notice, who was never called into court to answer the case, and no means of defense against it whatever? Can this be law? Can there be any such sanctity attaching to the mere forms of the law as entirely to subvert its substantial aims and ends? In law, names are not things.
It could be said with as much propriety that a child came into the world without any mother, as to say that an execution can exist for any purpose, that has no judgment to support it. The very idea is absurd.
GAMBLE & BATES, for Defendant. And so the only question is, whether or no the execution alone, without the judgment, is a defense for the sheriff. We insist that it is. The sheriff is protected in executing all process regular on its face, and emanating from a court having legal jurisdiction of the subject. 1 Mo. R. 134, Brown v. Henderson; 4 Mo. R. 1, 3, Burton v. Sweaney; 4 Mo. R. 37-8, Mitchell v. Gregg; 9 Conn. R. 141, Watson v. Watson; 12 Wend. 96; 16 Wend. 562, Earl v. Camp. But even in cases where a sheriff might be liable for an abuse of his powers, still trespass will not lie against him for a wrong done under regular process. 9 Conn. R. Sup.; 10 Mo. R. 151, Ivy v. Barnhartt. If the execution were indeed irregular, by the clerk's mistaking the name, Carter, for the true plaintiff, it was Higdon's business to move to quash it for that irregularity (and then the judgment plaintiff might have his counter motion to amend it). He could not take advantage of the irregularity in a collateral way, even against a private person not a party to the record, much less a sheriff. 9 Mo. R. 722, Reed v. Austin; 9 Mo. R. 784, Callahan v. Griswold; and see 8 Mo. R. Hill v. Paul.
John B. Higdon brought his action of trespass in the St. Louis Circuit Court against Samuel Conway, late sheriff of St. Louis county, for the taking of a slave, acting under a fieri facias in favor of Carter et al. v. Higdon and one Charles Ely. The slave was the property of Higdon. The fieri facias is regular on its face. At the trial, Higdon, in order to defeat the sheriff's defense set up under the writ, offered to prove that there was no judgment to warrant the issuing of the execution--that is that the clerk of the court from which the writ emanated had mistaken the name of Carter for the true name of the plaintiff in the judgment. The sheriff objected; insisting that his defense consisted in the execution, and not the judgment; and the court sustained the objection, and ruled out all such evidence. Higdon took a non-suit, and moved to set it aside; which motion was overruled, and he brings the case here by writ of error.
The only question presented for our consideration, arises on the action of the Circuit Court in excluding the testimony offered by the plaintiff to prove that there was no such judgment of record in the Circuit Court as that set out in the writ. We had supposed that the question here presented was well settled by the numerous ...
To continue reading
Request your trial
- Buder v. Holt
-
St. Louis & San Francisco Railway Company v. Lowder
...regular upon its face and the court from which it was issued had jurisdiction of the subject-matter. Miller v. Brown, 3 Mo. 127; Higdon v. Conway, 12 Mo. 295; Melcher Scruggs, 72 Mo. 406. But "if the court has no jurisdiction over the subject-matter, the officer is supposed to know it; and ......
-
Metzner v. Graham
...Ohio St. 523; Berry v. Burckhartt, 1 Mo. 418; Miller v. Brown, 3 Mo. 127; Hickman v. Griffin, 6 Mo. 37; Davis v. Wood, 7 Mo. 162; Higdon v. Conway, 12 Mo. 295; State v. Ferguson, 13 Mo. 166; Mortland v. Smith, 32 Mo. 225; Bennett v. Vinyard, 34 Mo. 216; Howard v. Clark, 43 Mo. 344; State v.......
-
City of St. Louis v. Brooks
...Where the execution is regular on its face, the sheriff is not bound to go behind the writ to see whether the judgment is regular. Higdon v. Conway, 12 Mo. 295. (3) The form of notice given in this case is the one common use, and this court will take cognizance of the forms commonly used to......