Irondale Bank v. Terrill

• Decision Date: 09 February 1909
• Citation: 116 S.W. 481,135 Mo. App. 472
• Parties: IRONDALE BANK v. TERRILL.
• Court: Missouri Court of Appeals

116 S.W. 481

135 Mo. App. 472

IRONDALE BANK v. TERRILL.

St. Louis Court of Appeals. Missouri.

February 9, 1909.

Rehearing Denied March 9, 1909.

1. EXECUTION (§ 253)—LEVY—SALE.

A levy and sale on execution may be attacked at the return term of the writ.

2. JUDGMENT (§ 18) — IRREGULARITIES — AMENDED PETITION — FAILURE TO SERVE.

Where defendant was in court, a judgment rendered against him was not void because he was not served with a copy of an amended petition.

3. HOMESTEAD (§ 26)—LOCATION—RESIDENCE.

Where defendant lived and had his home in one county, he could not claim a homestead on other land located in an adjoining county.

4. EXECUTION (§ 250)—SALE—PRICE.

Where, on an application to set aside an execution sale of certain lots, there was no evidence as to the value of the lots, a contention that they were sold at a grossly inadequate price was not sustained.

5. EXEMPTIONS (§ 114)—LEVY OF EXECUTION —NOTICE OF EXEMPTIONS.

Rev. St. 1899, § 3162 (Ann. St. 1906, p. 1797), provides that each head of a family at his election, in lieu of the property mentioned in the first and second subdivisions of section 3159 (page 1795), may select and hold exempt from execution any other property, not exceeding in value $300, except 10 per cent. of any debt, income, salary, or wages due such head of a family, and section 3163 (page 1799) makes it the duty of the officer in whose hands an execution may come, before he shall levy the same, to apprise the execution defendant of the property exempt under sections 3158, 3159, 3162, and his right to hold the same. Held, that section 3163 was mandatory; and hence, where an execution was issued out of the circuit court of W. county to the sheriff of S. county, a levy made by him on real estate in S. county, without notifying defendant of his right of exemption specified, was invalid, nor was the want of notice cured by a notice given by the creditor of the issue of the execution to S. county.

Appeal from Circuit Court, Washington County; Jos. J. Williams, Judge.

Action by the Irondale Bank against John T. Terrill. From an order overruling defendant's motion to set aside a levy on real estate, defendant appeals. Reversed and remanded.

This is an appeal from the action of the circuit court of Washington county in overruling a motion to set aside a levy on real estate in St. Francois county, made under an execution issued out of the circuit court of Washington county, and directed to the sheriff of St. Francois county, on a judgment of the Washington county circuit court, in favor of respondent and against the appellant and one Queen. The execution, dated October 24, 1904, is made returnable to the first Monday of the March term, 1905, was returned into court as executed by sale, on December 23, 1904, of one town lot for $150, and by sale, on January 19, 1905, of another lot for $165, a total of $215, and was returned "satisfied"; the judgment being for $264.75 debt and $14.05 costs. The motion was sworn to by appellant March 6, 1905. The cause was heard by the court, March 8, 1905 —at the March term of the court—and while the dates of filing of the return on the execution and of the motion are not given, March 6th was the first Monday of the March, 1905, term, so that the motion seems to have been filed on the first, second, or third day of that term. The grounds of the motion are that the sheriff of St. Francois county failed to notify the defendant in the execution (appellant here) of his levy upon the two lots in St. Francois county as the property of appellant, and failed to apprise appellant of his rights, as the head of a family, "to exemptions from executions as provided by law," and because the sheriff did not give appellant "an opportunity, as the law required to avail himself of the provisions of the law relating to exemptions from execution to the head of a family," as required by section 3163, Rev. St. 1899 (Ann. St. 1906, p. 1799). As a further ground for setting aside the levy, it is claimed that the property was sacrificed at a price grossly below its value. The further claim is made that the judgment of the circuit court of Washington county was irregular, because that court had lost jurisdiction of the cause by reason of the fact that the judgment was had on an amended petition, filed at the same term at which the judgment was rendered, that the defendants below were not served with a copy of the amended petition, and that the judgment was therefore void for want of jurisdiction, and that the sale under the execution on the judgment was consequently void. It appears from the evidence in the case that the appellant, at the time of the rendition of the judgment and issue of the execution to St. Francois county and of the sale of the property by the sheriff of that county, resided at or near Irondale, in Washington county, about four miles from the St. Francois county line, and that he was the head of a family, and that the property sold in St. Francois county consisted of two town lots, on one or more of which there were buildings which appellant had rented out. He had never lived on the property himself, but on the contrary, as before stated, he and his family resided in Washington county, in which county it seems he had property worth from $1,000 to $1,200, although the evidence is not very clear as to what it consisted of; that is to say, whether it was property of the kind specified in section 3159, Rev. St. 1899 (Ann. St. 1906, p. 1795), or real property. It does not appear that any transcript of the judgment was ever filed with the clerk of the circuit court of St. Francois county, and there is no pretense that the sheriff of St. Francois county ever apprised defendant "of the property exempt under sections 3158, 3159, 3162, and his right to hold the same as exempt from execution," as provided by section 3163. At the hearing of the motion the respondent introduced in evidence a notice signed, "Irondale Bank," by its cashier, directed to John Terrill, Washington county, Mo., notifying him that the Irondale Bank had caused an execution to be issued against him "in the matter of the suit on note of Irondale Bank against John Terrill and E. M. Queen," on which judgment was obtained in the circuit court of Washington county on the 17th day of October, 1904; that the execution was issued on the 24th of October of the same year, directed to the sheriff of St. Francois county, Mo., returnable to the March term, 1905, of the circuit court of Washington county, "it being the purpose of the said bank to cause to be sold real estate, if any found by said sheriff of St. Francois county, in said county, belonging to you, to satisfy said judgment and the costs." This notice was served on Terrill by a constable of Concord township, in Washington county, on the 28th of October, and filed in the office of the clerk of the circuit court of Washington county on the 30th of November, 1904. Terrill prayed an appeal to the Supreme Court, which was granted, but the cause was subsequently, on motion, transferred by the Supreme Court to this court; "it appearing to the satisfaction of that court that it was without jurisdiction in the cause."

Chas. H. Richeson and M. E. Rhoades, for appellant. E. T. Eversole, for respondent.

REYNOLDS, P. J. (after stating the facts as above).

The right to attack the levy and sale at the return term of the writ of execution was settled by this court in the case of Finke v. Craig, 57 Mo. App. 393, on the authority of American Wine Co. v. Scholer, 13 Mo. App. 345, and of Ray v. Stobbs, 28 Mo. 35, the ground being that every court is vested with inherent power to prevent the misuse or abuse of its process. It is further said in the Finke Case, supra, that this jurisdiction has been exercised upon motion made on the first day of the term after the sale, although a prior deed has been executed in consummation of such sale. Whether any deeds have been executed and delivered in this case does not appear, but it does appear that the motion was made on the first day of the return term of the execution. The proposition as to the judgment being void for the reason stated in the motion is untenable. Defendant was in court. Whether he was served with a copy of the amended petition or not, or whether there were other irregularities connected with the rendition of the judgment, it was a final judgment, which would sustain an execution. It it also evident that the appellant had no right of homestead in the property in St. Francois county. He lived and had his home in Washington, and not in St. Francois county. One cannot have a homestead in two counties at once, nor can he claim a homestead in property upon which neither he nor his family at the time resides. St. Louis Brewing Association v. Howard, 150 Mo. 445, 51 S. W. 1046. There was no testimony in the case as to the value of the lots levied upon and sold from which we can infer that they were sacrificed at a grossly inadequate price. Therefore the proposition of the appellant on this point is untenable. The claim of respondent that the price brought at the sale is the measure of value is not, however, correct under the facts in this case.

The substantial point for determination in this cause arises over the failure of the sheriff of St. Francois county, before levying upon the lots in his county, under the execution in his hands from the circuit court of Washington county, to apprise appellant, one of the defendants in the execution, and the only defendant whose property was levied upon, "of the property exempt under sections 3158, 3159, and 3162, and his right to hold the same as exempt from attachment and execution," and whether his failure to do so deprived appellant, being the head of a family, of the right, "at his election, in lieu of the property mentioned in the first and second subdivisions of section 3159," to "select and hold, exempt from execution, any other property, real, personal...