Irondale Bank v. Terrill
| Decision Date | 09 February 1909 |
| Citation | 116 S.W. 481,135 Mo.App. 472 |
| Parties | IRONDALE BANK, Respondent, v. TERRILL, Appellant |
| Court | Missouri Court of Appeals |
Argued January 13, 1909.
Appeal from Washington Circuit Court.--Hon. Jos. J. Williams, Judge.
REVERSED AND REMANDED.
STATEMENT.--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 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 $ 264.74 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 sixth 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 execution 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, Revised Statutes 1899. 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 a thousand to twelve hundred dollars, 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, Revised Statutes 1899, 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 and 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, Missouri, 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 seventeenth day of October, 1904; that the execution was issued on the twenty-fourth of October of the same year, directed to the sheriff of St. Francois county, Missouri, 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 twenty-eighth of October, and filed in the office of the clerk of the circuit court of Washington county on the thirtieth 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."
Reversed and remanded.
M. E. Rhodes and Chas. H. Richeson for appellant.
Edw. T. Eversole for respondent.
REYNOLDS, P. J. (after stating the facts).
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 is 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 up on 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 or mixed, or debts and wages not exceeding in value the amount of $ 300." This section 3162, was amended (Session Acts, 1903, p. 195) by the addition of the words, "except ten per cent of any debt, income, salary or wages due such head of a family."
After a very careful consideration and examination of the cases in which these sections (3162 and 3163) have been before our courts, we can come to no other conclusion than that it was the duty of the sheriff of St. Francois county to have apprised appellant of his rights under the law. Under these sections there is no discretion left in the officer into whose hands an execution comes. Whether that execution issued out of the court of his own county or from the court of another county of this State, section 3163 is explicit as to the duty of the officer. Section 3162 is equally clear in giving the right of selection to the defendant in any execution issued against him. We have found no case in which these sections have been held to be directory merely. When in disregard of them and of the law relating to homesteads, the homestead is sold, our courts have invariably held the sale void. See St. Louis Brewing Association v. Howard, supra where at page 450, Judge MARSHALL has collated the cases bearing upon this proposition. See, further, Tapley v. Ogle, 162 Mo. 190, 62 S.W. 431. When the property outside of the homestead has been sold and the process of the court executed so that it is beyond the control of the court, and the property has gone into the hands of an innocent holder for value, while the law will mulct the officer and his sureties on his bond for the failure of the officer to perform his duty the courts have held...
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