Karnes v. Alexander

• Decision Date: 06 June 1887
• Citation: 4 S.W. 518,92 Mo. 660
• Parties: Karnes, Appellant, v. Alexander
• Court: Missouri Supreme Court

4 S.W. 518

92 Mo. 660

Karnes, Appellant, v. Alexander

Supreme Court of Missouri

June 6, 1887

Appeal from Jackson Circuit Court. -- Hon. T. A. Gill, Judge.

Affirmed.

R. H Field for appellant.

(1) It does not appear upon the face of either of the executions nor in the sheriff's deed, that a transcript of the justice's judgment was filed, indexed, and recorded, in the office of the clerk of the Kansas City circuit court, as required by the city charter. Kentzer v. Railroad, 47 Mo. 641; Carr v. Youse, 39 Mo. 346. (2) The executions are void because they fail to show that the justice of the peace of Kaw township, who rendered the judgment recited, was a justice in the City of Kansas. City Charter, art. 8, sec. 4; Laws, 1875, p. 253; Hessey v Heitkamp, 9 Mo.App. 36; Colville v. Nealy, 2 Swan [Tenn.] 89. (3) It should affirmatively appear that the justice was an officer of the city. Cunningham v. Railroad, 61 Mo. 33; State v. Swope, 72 Mo. 399; State v. Metzger, 26 Mo. 65; Schell v. Leland, 45 Mo. 290; Ewing v. Donnelly, 20 Mo.App. 6. An inevitable presumption arises against the jurisdiction of the justice, when said fact does not appear. (4) And the same presumptions are to be indulged against process issued on the judgments or proceedings before them, whereon the process is silent. Hall v. Howe, 10 Conn. 514; Moore v. Lynch, 4 Baxter, 287; Gibbs v. Bourland, 6 Yerg. 481. (5) Nothing having been done under the executions, such as levying upon the property, or causing the same to be advertised for sale, nor by doing any other act in execution of such process until more than two weeks after the return day thereof; they were, therefore, dead writs on the day of the sheriff's sale; hence, it was a nullity on this ground, if it were not for reasons ante. Freeman on Ex., sec. 106; Bank v. Bray, 37 Mo. 194; McDonald v. Grovefield, 45 Mo. 28; City of Jefferson v. Curry, 71 Mo. 85; Mitchell v. Ireland, 54 Tex. 301; Barrett v. McKenzie, 24 Minn. 20; Knox v. Randall, 24 Minn. 479; West v. Shockley, 4 Harr. [Del.] 287; Bernard v. Stevens, 2 Aiken [Vt.] 429; Dode v. McKinnie, 4 Hawks [L. and Eq.] 219. Return day, as used in our statutes, and as understood and spoken of by the courts of this state, does not mean the whole term of the court to which an execution is returnable, but it necessarily means, and is understood to mean, the first day of the term, if any particular day thereof. 3 Blacks. Com. 278; Bank v. Tome, 2 Spear's Law [S. C.] 501; State v. Commissioners, 37 N. J. L. 394; Browning v. Jones, 4 Humph. [Tenn.] 69; Cash v. Tozer, 1 W. & S. [Pa.] 519, 526.

C. O. Tichenor for respondent.

(1) The entry of a judgment by a justice of the peace is a ministerial act. Courts overlook the matter of form, and regard proceedings before a justice according to the merits. The entry of a verdict by a justice on his docket has been held a good judgment. Morse v. Brownfield, 27 Mo. 224; Stemmons v. Carey, 57 Mo. 222; Lynch v. Kelly, 41 Cal. 232. (2) Justices are not required to state anything in their entries not called for by the statutes. Simonton v. Hays, 88 Ind. 72; Hagerman v. Weitzel, 15 Kas. 387; Coffee v. City, 36 Wis. 121; Brown v. Pearson, 8 Mo. 159. The service of process in the county makes a prima facie case of jurisdiction. Bacon v. Basset, 19 Wis. 48. (3) Presumptions are allowed to sustain the judgments of justices of the peace. Crowley v. Wallace, 12 Mo. 147; Franse v. Owens, 25 Mo. 334; Waddell v. Williams, 50 Mo. 222; Baker v. Baker, 70 Mo. 136; Fulkerson v. Davenport, 70 Mo. 545; Coffee v. City, 36 Wis. 124; Roach v. Company, 71 Mo. 398; Colvin v. Six, 79 Mo. 200; State ex rel. v. Six, 80 Mo. 62. (4) Where the judgment of a justice is silent as to a matter, facts may be shown aliunde, at least as to that which the statute does not require to be stated therein, in aid of the judgment. Jolly v. Foltz, 34 Cal. 321; Van Duzen v. Sweet, 51 N.Y. 381; Crowley v. Wallace, 12 Mo. 147; Garnett v. Stacey, 17 Mo. 601; Franse v. Owens, 25 Mo. 334; Elliott v. Black, 45 Mo. 372; Baker v. Baker, 70 Mo. 136; Fulkerson v. Davenport, 70 Mo. 545. (5) But the record shows that all that was done by the justice was up to the standard required by counsel. (6) The execution is complete. It was not necessary that it show that the justice who rendered the judgment was an officer of the City of Kansas. Perkins v. Quigley, 62 Mo. 498; Carpenter v. King, 42 Mo. 223. (7) An execution sale is not open to attack for any defect in the execution which could have been amended. Stewart v. Severance, 43 Mo. 322; Davis v. Kline, 76 Mo. 313; Freeman on Executions, sec. 63; Herman on Executions, sec. 66. The same principle governs in cases of judgment for taxes. Wellshear v. Kelly, 69 Mo. 343. (8) It was not necessary for the sheriff to go upon the land to make the levy. Duncan v. Matney, 29 Mo 375.

OPINION

Norton, C. J.

This is a suit by ejectment to recover the possession of certain real estate in Kansas City. Defendant had judgment, from which plaintiff has appealed, and it is conceded that plaintiff was entitled to recover unless a certain sheriff's deed, put in evidence by defendant, was effectual in passing the title to the property in dispute.

The trial court held that the deed was effectual for that purpose, and it is this ruling of which plaintiff complains, and the grounds of his complaint will sufficiently appear by the following facts disclosed by the bill of exceptions, viz: That the following executions were delivered on the first day of April, 1876, to the sheriff of Jackson county, which, together with the advertisements posted thereon, were read in evidence. There are two of these executions, but inasmuch as, except as to the amounts thereof, the recitals in each are the same, we copy herein but one, which is as follows:

"The State of Missouri.

"To the Sheriff of Jackson County, Greeting:

"Whereas, Michael Hunt, on the twenty-second day of September, A. D., 1875, filed in the office of the clerk of the circuit court of Jackson county, a transcript of a judgment, by him obtained against Charles G. Hopkins, Sans W. Hopkins, and J. V. C. Karnes, before A. W. Allen, Esq., a justice of the peace, within and for Kaw township, Jackson county, on the twenty-sixth day of June, A. D., 1875, for the sum of $ 37.64, which to the said Michael Hunt was adjudged as aforesaid, and also for costs; and, whereas, said judgment was rendered on a certain special tax bill against the following described real estate: Lot number nine (9) in block number seven (7) of Ranson and Hopkins' addition to the City of Kansas, county of Jackson, and state of Missouri, and that the defendants are the owners thereof.

"These, therefore, command you, that of the above described real estate of the said Charles G. Hopkins, Sans W. Hopkins, and J. V. C. Karnes, you cause to be made the sum aforesaid, adjudged against them, together with the costs, and that you have the same before the judge of our Jackson county circuit court at the next April term thereof, to satisfy the judgment and costs aforesaid; and that you certify how you execute this writ.

"Witness, Wallace Laws, clerk of our said circuit court of Jackson county, with the seal thereof hereunto affixed, at office, in Kansas City, this first day of April, A. D., 1876.

[L. S.] "Wallace Laws,

"Clerk.

The following were the acts done by the sheriff under the executions, to-wit: On the twenty-ninth day of April, 1876, the sheriff caused an advertisement to be inserted (as provided by law for advertising sheriff's sales under executions), of his intention to sell said real estate, under the executions above set forth, on the twenty-second day of May, 1876, and notice of such intention having been published, said real estate was stricken off on May 22, 1876, and sold to Wm. E. Sheffield, at public sale, by the sheriff, at the courthouse door. A deed, in due form of law, was made by the sheriff to Wm. E. Sheffield, purporting to convey to him said real estate, and vested in said Sheffield the title to said real estate, if the above executions were sufficient on their face to authorize the sheriff to proceed thereon to make a sale, and were living writs on the twenty-second day of May, 1876. Said sheriff's deed is as follows:

"To all to whom these presents shall come, I, C. B. L. Boothe Sheriff of Jackson County, State of Missouri, send greeting:

"Whereas, Michael Hunt, on the twenty-second day of September, A. D., 1875, filed in the office of the clerk of the circuit court of Jackson county, a transcript of a judgment, by him obtained against Charles G. Hopkins, Sans W. Hopkins, and J. V. C. Karnes, before A. W. Allen, Esq., a justice of the peace, within and for Kaw township, Jackson county, on the twenty-sixth day of June, A. D., 1875, for the sum of twenty-four and forty-nine hundredths dollars, which to the said Michael Hunt was adjudged as aforesaid, and also for costs; and, whereas, said judgment was rendere on a certain special tax bill against the following described real estate: 'Lot number nine (9), in block number seven (7), of Ranson & Hopkins' addition to the City of Kansas, county of Jackson, and state of Missouri,' and that the defendants are the owners thereof. These, therefore, command you that of the above described real estate of the said Charles G. Hopkins, Sans W. Hopkins, and J. V. C. Karnes, you cause to be made the sum aforesaid adjudged against them, together with the costs, and that you have the same before the judge of our Jackson county circuit court, at the next April term thereof, to satisfy the judgment and costs aforesaid, and that you certify how you execute this writ.

"Witness Wallace Laws, clerk of our said circuit court of Jackson county, with the seal thereof...