Mers v. Bell

• Decision Date: 31 January 1870
• Citation: 45 Mo. 333
• Parties: F. D. MERS, Defendant in Error, v. A. J. BELL, Plaintiff in Error.
• Court: Missouri Supreme Court

45 Mo. 333

F. D. MERS, Defendant in Error,

v.A. J. BELL, Plaintiff in Error.

Supreme Court of Missouri.

January Term, 1870.

Error to First District Court.

Johnson, and Budd, for plaintiff in error.

The sale should have been made at Pleasant Hill, where the court out of which the execution issued was held, and during the session thereof. (Blanchard v. Baker, 29 Mo. 441; Sess. Acts 1851, p. 203; Sess. Acts 1867, p. 85.)

H. H. Harding, for defendant in error.

WAGNER, Judge, delivered the opinion of the court.

The origin of this cause was a motion to set aside a sale made under execution issued out of the Common Pleas Court of Cass county, upon a judgment obtained while sitting at Pleasant Hill. The sale was made by the sheriff, at the court-house door, at Harrisonville, the county seat, during a term of the Circuit Court, and not at the place where the Common Pleas was held, or during a session thereof.

The motion was sustained and the sale set aside on the ground that the sale should have been made at the place where the court out of which the execution issued was held, and during its session. This ruling of the Common Pleas Court was affirmed, on appeal, in the Circuit Court, but the judgment of the Circuit Court was reversed in the District Court. It will be perceived, therefore, that there is but one question in the record, and that is whether the sale made by the sheriff at the court-house door, whilst the Circuit Court was in session, was valid.

The act establishing the Court of Common Pleas in Cass county provides that it shall hold four terms a year--two at the county seat of the county, and two at the town of Pleasant Hill; and it declares that judgments rendered by said Common Pleas Court shall be liens on all real estate situated in said Cass county, and with like effect as judgments of the Circuit Court, and shall be proceeded upon to execution and sale in the same manner as is prescribed by law for judgments in the Circuit Court. The act further makes it the duty of the clerk of the Common Pleas Court, after the adjournment of each term, to enter upon the records of the Circuit Court a list of all judgments rendered at such term. The sheriff of the county is the officer provided to attend the sittings of the Common Pleas Court, and to execute its process. (See Acts 1867, pp. 86-7.)

No provision is anywhere made in the act organizing and establishing the court for the sale of real estate, as to where or when, or at what particular time or place, the sale shall take place. The only direct reference to the subject is the seventh section, where it is said that the judgments of the Common Pleas Court shall be proceeded upon to execution and sale in the same manner as is prescribed by law for judgments in the Circuit Court. Now, the statute provides...