McAnaw v. Matthis

• Court: Missouri Supreme Court
• Writing for the Court: Barclay, J.
• Citation: McAnaw v. Matthis, 129 Mo. 142, 31 S.W. 344 (Mo. 1895)
• Decision Date: 07 June 1895
• Parties: McAnaw, Appellant, v. Matthis

31 S.W. 344

129 Mo. 142

McAnaw, Appellant, v. Matthis

Supreme Court of Missouri, First Division

June 7, 1895

Appeal from Clinton Circuit Court. -- Hon. J. M. Sandusky, Judge.

Reversed and remanded.

Thos E. Turney and J. J. McAnaw for appellant.

(1) The circuit court has power to dismiss an appeal from a justice of the peace. Spencer v. Beasley, 48 Mo.App. 97; Brown v. Railroad, 85 Mo. 123; St. Louis v Bird, 31 Mo. 88; State v. Thompson, 81 Mo. 163; Barnes v. Holland, 3 Mo. 47; Runkle v Hogan, 3 Mo. 234; Marian v. State, 11 Mo. 578. Am. and Eng. Encyclopedia of Law, title, Justice of the Peace, K. 18. (2) Dismissal of appeal leaves judgment of justice in force to be satisfied as though no appeal had been taken. Green v. Castello, 35 Mo.App. 127; Tar-water v. Long, 36 Mo.App. 182; Art. 9, ch. 94, R. S. 1889, especially secs. 6328-29-30-32-40-42-43. (3) No notice of issuance of execution to defendant is necessary. (4) The clerk had authority to issue execution on transcript judgment. Tracy v. Whitsett, 51 Mo.App. 149.

William Henry for respondent.

(1) Purchasers at execution sale buy at their peril, subject to the power and control of the court over its process to prevent any wrong, injustice or injury, arising out of inadvertence, accident, mistake or fraud. McKee v. Logan, 82 Mo. 524. (2) An appeal from a judgment of a justice of the peace vacates the judgment except in case of failure on the part of the appellant to give notice of the appeal. Williams v. Lewis, 47 Mo.App. 659; Munley v. King, 40 Mo.App. 535; Lee v. Kaiser, 80 Mo. 431; Earl v. Hart, 89 Mo. 263. (3) There is nothing in the pamphlet filed herein indorsed, "copy of records, statement, brief, points and authorities of appellant," purporting to be any part of the record which shows any levy on the land sold, and the same is not such a compliance with the rules of this court as to justify the court in passing on the errors assigned.

Crosby Johnson, also, for respondent.

(1) An appeal from a judgment rendered by a justice of the peace vacates and dissolves such judgment. Turner v. Northcut, 9 Mo. 249; Earl v. Hart, 89 Mo. 263; Munley v. King, 40 Mo.App. 531; Williams v, Lewis, 47 Mo.App. 658; Hammel v. Weis, 54 Mo.App. 14. (2) Unless defendant prevails on the appeal, any judgment which may be entered in the circuit court against him is a new, independent and original judgment and must be enforced by execution out of the circuit court. Earl v. Hart, 89 Mo. 263; Munley v. King, 40 Mo.App. 531; Hammel v. Weis, supra. (3) An execution must be bottomed on the last valid judgment in the cause and is irregular, if not void, when based on a prior judgment. Meyer v. Campbell, 12 Mo. 603. (4) The order of the court quashing the execution and disapproving the sale on account of irregularity and invalidity of the execution is not such a final order or judgment as will sustain an appeal. State v. Boogher, 7 Mo.App. 573; Hirsch v. Weisberger, 44 Mo.App. 506; Wolf v. Wohlien, 32 Mo. 124. (5) No execution can be issued on a transcript until after an execution has been issued by the justice and such execution been returned nulla bona. R. S. 1889, sec. 6287. (6) "Executed, by not finding" property is not such return as the law requires. R. S. 1889, sec. 6287. Burk v. Flurnoy, 4 Mo. 116. (7) Exceptions to rulings of the court were not saved at the time the rulings were made. Case v. Fogg, 46 Mo. 44; Smith v. Dunklin Co., 83 Mo. 195; State v. Reed, 89 Mo. 168.

Barclay, J. Brace, C. J., and Macfarlane and Robinson, JJ., concur.

OPINION

Barclay, J.

This appeal is designed to review certain proceedings of the Clinton circuit court, by which the latter set aside a sale of real estate to the plaintiff. The sale was made upon execution issued from the circuit court on a transcript of a judgment given by a justice of the peace.

The facts out of which the controversy grows are as follows:

December 22, 1891, plaintiff, Mr. McAnaw, obtained a judgment for $ 217 against defendant, Mr. Matthis, upon an account. The judgment was duly rendered by a justice of the peace in Clinton county, after a jury trial in which both parties participated. The judgment was in ordinary form for the recovery of the sum named, together with costs, and it ordered execution to issue thereon.

December 31, 1891, the defendant filed an affidavit and bond for appeal from the justice to the circuit court, which appeal was allowed; and an order was made by which the execution, meanwhile issued (December 26, 1891) to the constable, was "recalled."

January 5, 1892, a transcript of the foregoing judgment was filed in the clerk's office of the Clinton circuit court.

January 12, 1892, the plaintiff, as the then appellee, entered his appearance in the cause in the circuit court. At the same (January) term, that court on motion ordered defendant to file an additional appeal bond thirty days before the next term of the court, to be approved by the clerk.

In the record of the following term (May 21, 1892) of the circuit court this entry occurs:

"J. J. McAnaw vs. Samuel Matthis, Jr. Comes now the plaintiff in the above entitled cause by his attorney, and it appearing to the court that the defendants have failed to file their bond for costs, as they were ordered to do, the court dismissed the appeal, wherefor it is ordered and adjudged by the court that defendant take nothing by their appeal, but that the judgment of the justice be in all things confirmed and approved."

August 4, 1892, the execution now in question was issued from the circuit clerk's office upon the transcript of the justice's judgment as originally filed. The execution was then levied upon certain specified lots in the city of Cameron in that county, and the lots were ultimately sold, after due publication of notice, September 12, 1892, and plaintiff became the purchaser, as the highest bidder, for $ 500.

On the day of, and before, the sale (according to the statement in the sheriff's return), defendant filed a motion in the circuit court to quash the execution because there was "no judgment upon which to base the execution."

September 14, 1892, an amended motion was filed to set aside the sheriff's sale and quash the execution, assigning the following grounds:

"First. Because the court erred in not sustaining defendant's motion to quash the execution is sued out of the clerk's office in favor of the plaintiff and against defendant.

"Second. Because there is no judgment upon which the execution on which the sale was made can be based.

"Third. Because the judgment mentioned and described in said execution was dissolved by the appeal which the defendant took in said suit.

"Fourth. Because the judgment against defendant, after defendant's appeal to the circuit court, was a nullity and was insufficient to authorize execution, out of the clerk's office.

"Fifth. Because there was no notice of the issuance of said execution served upon the defendant.

"Sixth. Because said execution was issued without authority of law and is irregular and void."

When this motion came on to be heard, the facts already recited were put in evidence.

It was also shown that the execution issued by the justice, December 26, 1891, was returnable in ninety days, and that it had been returned "not satisfied," by the constable, March 25, 1892, "not finding any property on which to levy," etc.

It was also shown that an affidavit was filed, August 4, 1892, in the clerk's office, to the effect that defendant was not, and had not been for three months past, a resident of Clinton county.

There was evidence offered on the hearing of the motion to the same effect, touching the nonresidence of defendant.

On these facts the trial court set aside the sale. The plaintiff then duly appealed to the Kansas City court of appeals. That court sent the case here on the ground that title to real estate was involved, in which opinion we coincide. Const. 1875, art. 6, sec. 12.

An objection has been presented, attacking the sufficiency of some exceptions taken by the plaintiff in the trial court. In order to preserve the exact language on which that objection rests, we copy that part of the bill of exceptions, viz.:

"There was no further evidence offered by either party.

"Whereupon the court sustained said motion to set aside the sheriff's sale, which said judgment of the court sustaining said motion is in words as follows:

"John J. McAnaw,)

against)

"Samuel Matthis.)

"Now at this day the motion filed herein to set aside sale of real estate is by consent taken up; and the court having heard the evidence and argument of counsel, and being sufficiently advised in the premises, sustains said motions upon the ground that there was no levy under the execution under which the real estate was sold, and for the further reason that there should have been a judgment entered in the circuit court, and execution should have been issued upon such judgment of circuit court, and not upon a transcript judgment.

"To which plaintiff excepted. Thereupon, on the same day, in open court, the plaintiff filed motion for new trial, in words and figures as follows, to wit:

"In the circuit court of Clinton county.

"J. J. McAnaw, Plaintiff,(

v.)

"Samuel Matthis, Defendant.)

"Now at this day comes above named plaintiff and prays the court to set aside its order or judgment sustaining defendant's motion to set aside the sale made in the above cause, and to grant a new trial for the reasons:

"First. The order and judgment of the court is against the evidence introduced in the cause.

"Second. The order and judgment are against the law.

"J. J. McAnaw and Thomas E. Turney,

"Attorneys for Plaintiff.

"Which was by the court taken up and overruled to which plai...