Mellier v. Bartlett

• Decision Date: 07 June 1886
• Parties: MELLIER v. BARTLETT.
• Court: Missouri Supreme Court

89 Mo. 134

MELLIER

v.BARTLETT.

Supreme Court of Missouri.

June 7, 1886.

Appeal from Butler circuit court.

Motion to quash an execution levy on real estate claimed to be a homestead exemption, the sheriff acting under a writ from another county. Motion denied, and defendant appeals.W. H. Clopton, for appellant, A. A. Mellier. W. T. League, for respondent, George T. Bartlett.

BLACK, J.

The plaintiff, in 1875, obtained a judgment in the circuit court of St. Louis county, against the defendant, for $395. On the fourth December, 1883, he had an alias execution issued on the judgment, directed to the sheriff of Butler county, returnable to the February term of the circuit court of St. Louis county. The sheriff of Butler county levied the execution upon property in that county, and advertised the same for sale on the twenty-second January, 1884. On the day preceding the day of sale the defendant filed a motion in the circuit court of Butler county, that court being then in session, to quash the levy, on the ground that the defendant was the head of a family, and that the property levied upon was his homestead, and occupied as such. The court heard and sustained the motion on the day after it was filed.

The first question is whether the circuit court of Butler county had any jurisdiction to hear and determine the motion, inasmuch as the writ issued from another circuit court. Section 2405, Rev. St. 1879, gives the execution debtor a right to apply to the judge of the court out of which the execution issued to have the same stayed, set aside, or quashed. That section, as has been several times decided, furnishes a remedy in the vacation of the court, and in no way interferes with the right of the defendant to make his motion in open court. Parker v. Hannibal & St. J. R. Co., 44 Mo. 415; Heuring v. Williams, 65 Mo. 446. The question, therefore, still remains, in what court must the motion to quash the levy be made? The general rule undoubtedly is that every court has the exclusive control of its process, and no other court has a right to interfere with or control it. Nelson v. Brown, 23 Mo. 19; Keyte v. Plemmons, 28 Mo. 104. Hence an injunction cannot be issued by one court to enjoin an execution issued from another court. Pettus v. Elgin, 11 Mo. 411. Again, the circuit court of one county has no jurisdiction to quash an execution in the hands of the sheriff of that county, where the execution issued from the circuit court of another county. McDonald v. Tiemann, 17 Mo. 603. Counsel for the respondent concedes the binding force of these authorities to the extent...