Lawson v. Hammond

• Decision Date: 22 November 1905
• Citation: 90 S.W. 431,191 Mo. 522
• Parties: LAWSON v. HAMMOND.
• Court: Missouri Supreme Court

90 S.W. 431

191 Mo. 522

LAWSON v. HAMMOND.

Supreme Court of Missouri, Division No. 1.

November 22, 1905.

COURTS — SUPREME COURT — JURISDICTION — REAL ESTATE—TITLE—EXECUTION—LEVY.

An appeal from an order sustaining a motion to quash an execution levied on real estate claimed by defendant to be exempt as his homestead, before the sale of the property, did not involve the title to the real estate, so as to confer appellate jurisdiction on the Supreme Court.

Appeal from Circuit Court, Ralls County; Jno. Negown, Special Judge.

Action by Isaac N. Lawson against Reed N. Hammond. From an order sustaining a motion to quash an execution levied on defendant's homestead, plaintiff appealed to the St. Louis Court of Appeals, by which the cause was referred to the Supreme Court (81 S. W. 656). Case remanded to the St. Louis Court of Appeals.

G. W. Whitecotton, for appellant. E. W. Nelson, for respondent.

MARSHALL, J.

This case was certified to this court by the St. Louis Court of Appeals on the ground that title to real estate is involved in the case, as defined by this court in McAnaw v. Matthis, 129 Mo. 142, 31 S. W. 344, and Stinson v. Call, 163 Mo. 323, 63 S. W. 729. As far as can be gleaned from the record, the facts are as follows: On the 28th of October, 1901, the defendant filed a motion in the circuit court of Ralls county "to quash the levy of execution in the above-entitled cause" for the reasons, first, that the defendant is a married man, the head of a family, and a resident of Ralls county; second, that the sheriff of that county had not apprised him of his rights of exemption; third, that the sheriff did not summon commissioners to appraise the land and set out to defendant his exemption; fourth, that the land is incumbered for $800, and that the defendant is entitled to exemption out of the equity of redemption; fifth, that the land consists of only 53 acres; sixth, that the defendant made a request of the sheriff to set aside his homestead, which the sheriff refused to do, and that the sale at this time will cause irreparable loss to the defendant. For such reasons the defendant prayed the court to quash the levy of execution. The court heard the motion, and it appeared that the defendant was a married man, and that he lived with his family upon the land as his homestead until a few months before the hearing of the motion, when he went to Hannibal with his family, engaged in the service of the railroad, and left some of his household goods on the place, and returned to the place occasionally and worked it. The contention of the plaintiff was that the defendant had abandoned the homestead, and the controverted issue was as to whether or not he had done so. The trial court quashed the levy of execution. The plaintiff appealed to the St. Louis Court of Appeals, and that court sustained the judgment. Outside of the statement in the motion to quash that it was a motion to quash a levy under an execution, and of a similar statement in the ruling of the court on the motion, there is nothing in this record to show that any levy was ever made. The execution and the return of the sheriff are not included in this record, neither is there a copy of the judgment under which the execution was issued. But counsel on both sides seem to concede that the judgment rendered by the circuit court of Ralls county in favor of the plaintiff and against the defendant, and that the execution was a general execution, and that a levy had been made on the property, and that the sheriff had not apprised the defendant in the execution of his rights of exemption, nor had he given defendant an opportunity to select the part to be set aside as a homestead, nor had he summoned the commissioners to value and set apart a homestead, although he had requested him so to do. In this state of the record and these concessions of counsel, the case will be treated as if those facts appear in the record.

The first question that presents itself for adjudication in this case is as to the appellate jurisdiction of this court. The St. Louis Court of Appeals transferred the case to this court because of the ruling of this court in McAnaw v. Matthis and in Stinson v. Call, supra. And, if the rule laid down therein is a correct rule of law, this court has appellate jurisdiction; otherwise, not. Both of these cases were similar to the case at bar, and this court took jurisdiction of those cases and decided them upon their merits. McAnaw v. Matthis was decided in division No. 1 of this court at the April term, 1895. In that case the defendant in the execution moved to quash the execution before the sale on the ground that there was "no judgment upon which to base the execution." Before the motion was passed on the sheriff sold the property, and thereafter the defendant filed an amended motion to set aside the sheriff's sale and quash the execution, basing it upon these grounds, to wit: first, that the court erred in not sustaining the motion to quash previously filed; second, that there is no judgment upon which the execution on which the sale was made can be based; third, because the judgment was dissolved by an appeal which the defendant had taken in the original suit; fourth, because the judgment by reason of the appeal was a nullity and insufficient to authorize the execution; fifth, because there was no notice by the sheriff of the execution served upon the defendant; sixth, because the execution issued without authority of law and is irregular and void. It appeared that the plaintiff had obtained a judgment against the defendant before a justice of the peace, and that the defendant had taken an appeal to the circuit court. Thereafter the appellee entered his appearance in the circuit court, and that court on motion of the plaintiff ordered the defendant to give an additional appeal bond within 30 days. The defendant failed to do so, and the circuit court dismissed the appeal. In the meantime, and pending the appeal in the circuit court, an execution had been issued by the justice, and had been returned not satisfied by the constable. After the circuit court dismissed the appeal the plaintiff caused a transcript of the judgment to be filed in the circuit clerk's office, and sued out an execution thereon from the circuit court, and the property of the defendant, which appears to have been his homestead, was levied upon. The circuit court sustained the motion. An appeal was taken to the Kansas City Court of Appeals, and that court transferred the case to this court on the ground that title to real estate was involved, and this court said: "In which opinion we coincide."

The question of jurisdiction of this court was disposed of as follows: "It has been, moreover, held, in at least one case (without looking for more), arising before the act of 1891, that this court will review by appeal such an order setting aside a sale on execution. And, though the point now suggested was not expressly decided, the present ruling was then obviously taken for granted. St. Louis v. Brooks, 107 Mo. 381, 18 S. W. 22." The learned judge who wrote that opinion overlooked the fact that the case of St. Louis v. Brooks fell within the proper appellate jurisdiction of this court, not on the ground that title to real estate was involved, but because the city of St. Louis was a party to the action, and that city being one of the political subdivisions of this state this court had appellate jurisdiction for that reason. Hence no question was raised as to the jurisdiction of this court in that case. That case, however, for that reason, afforded no authority for holding that this court has appellate jurisdiction in such cases generally on the ground that title to real estate is involved. The court in the McAnaw Case then decided the case on its merits. Stinson v. Call, 163 Mo. 323, 63 S. W. 729, was a motion to quash the levy of an execution filed before the sale, on the ground that the property constituted the homestead of the defendant. The case was based upon a judgment of a justice of the peace upon which an execution had been returned nulla bona by the constable, and a transcript of the judgment had been filed in the office of the circuit clerk, and an execution issued thereon and levied on the land. The ground of the motion to quash was that the sheriff had not notified the defendant of his exemption, and had not permitted him to claim his homestead. Before the motion was passed on in the circuit court, the sheriff sold the land. After the sale it seems, from the statement in the opinion, that the defendant filed a sort of supplementary motion to quash and set aside the sale. The circuit court sustained the motions to quash the sale. The only thing said in that opinion about the jurisdiction of this court was: "Upon the authority of McAnaw v. Matthis, 129 Mo. 142, 31 S. W....