Hoevel v. Hoevel

• Decision Date: 03 December 1917
• Docket Number: No. 13811.,13811.
• Citation: 199 S.W. 402
• Parties: HOEVEL v. HOEVEL.
• Court: Missouri Supreme Court

199 S.W. 402

HOEVEL v. HOEVEL.

No. 13811.

Supreme Court of Missouri, Division No. 1.

December 3, 1917.

Appeal from St. Louis Circuit Court; George H. Shields, Judge.

Action by Annie Hoevel against Fannie Hoevel. From an order sustaining defendant's motion to set aside a sheriff's sale of land under an execution issued upon final judgment in the cause, Edward Linnemeyer, the purchaser, appeals. Order affirmed.

Eugene Hale, of St. Louis, for appellant. Jones, Hocker, Hawes & Angert, of St. Louis, for defendant Fannie Hoevel.

BROWN, C.

This is an appeal from an order of the circuit court for the city of St. Louis, sustaining a motion of the defendant in the above-entitled cause to set aside a sheriff's sale of land in said city under an execution issued upon final judgment in the same cause. The judgment was entered March 21, 1912, the execution issued on September 3d of the same year, returnable at the October term. The sale took place on the 11th day of the following November, and the motion was filed on the next day and during the October term. The land sold was a lot in St. Louis. It was struck off to Edward Linnemeyer for $2,400, according to the statement of the sheriff in his return. The motion to set aside the sale assigns as grounds therefor that the bid of $2,400 upon which the property was struck off to Linnemeyer was made not by Linnemeyer, but by one Leschen, and that the property was worth more than it was sold for, and would have brought more at the sale had it been properly made and Leschen's bid properly received. Leschen was the son-in-law of the defendant, and attended the sale for the purpose of looking after the interests of his mother-in-law, and preventing the sacrifice of the property. The judgment for which it sold amounted with interest and costs on the date of the sale to $1,998.

The facts and evidence were that the property, which was the home of Mrs. Hoevel, the defendant, was worth $3,000; that at the bidding both Linnemeyer and Leschen were bidders; that when the bidding closed Leschen claimed that the bid of $2,400 was his while Linnemeyer claimed it, and the deputy sheriff making the sale agreed with the latter and awarded him the property as being the highest bidder. Leschen did not at first ask for a resale, but after two or three other sales had been made and Linnemeyer had left the place he asked that the property be again put up for sale, which the sheriff refused. Several witnesses testified as to who made the winning bid, but the testimony predominated largely in favor of Linnemeyer, though tending strongly to the theory that Leschen became confused and thought he made the last and highest bid.

The court on November 27, 1912, and during the October term, entered its order sustaining the motion from which this appeal is taken. This order is as follows:

"Now at this day the motion of defendant, Fannie Hoevel, for an order setting aside the sale made by the sheriff of the city of St. Louis under the writ of execution issued in the above-entitled cause, being No. 177, returnable to the October term, 1912, of this court, and for an order of resale of the property, sold under execution, coming on for hearing from the said defendant, Fannie Hoevel, by her attorney; and comes Edward Linnemeyer, the purchaser of said sheriff's sale, by his attorney, and said parties submit motion to the court on the evidence and proof adduced and the arguments of counsel for the respective parties. And the court, having heard and duly considered the same and being now fully advised in the premises, doth order that said motion will be sustained, to set aside sale and a resale ordered, if the said defendant, Fannie Hoevel, will file in this court within three days from this date a bond in the sum of $3,000, conditioned on a resale; that she, or some one for her and in her behalf, will bid for the property sold under said execution No. 177, returnable to the October term, 1912, of this court, a sum in excess of $2,400, and a sum in addition thereto sufficient to pay the costs of such resale of said property."

Mr. Linnemeyer duly excepted and filed his motion for a new trial, which was overruled. During the same term and on November 30, 1912, the defendant filed the bond required by the order setting aside the sale.

The question raised by these facts has been frequently before this court, and it is too well settled to admit of question. Judgment has been entered against Mrs. Hoevel, amounting at the time to nearly $2,000, for which her home was to be sold under execution. She cannot be charged with culpability because she had not the money to pay it, nor because, in the appropriation of her property to that purpose, she desired to incur the least possible loss. Could its full value be realized, she would have $1,000 of surplus. Could she secure some one to buy it in and hold it for the amount required to satisfy the judgment, she might still have a home and opportunity to struggle for its payment, and it is natural that her son-in-law, if...