Norman v. Eastburn

• Decision Date: 19 July 1910
• Parties: NORMAN v. EASTBURN et al.
• Court: Missouri Supreme Court

130 S.W. 276

230 Mo. 168

NORMAN v. EASTBURN et al.

Supreme Court of Missouri, Division No. 2.

July 19, 1910.

1. GARNISHMENT (§ 191) — JUDGMENT IN FAVOR OF GARNISHEE — STATUTES.

Under Gen. St. 1865, c. 142, §§ 20-23 (Rev. St. 1899, §§ 3454-3457 [Ann. St. 1906, pp. 1984, 1985]), relating to garnishment, and providing for costs against plaintiff failing to recover judgment against the garnishee, etc., the court may render judgment in favor of one garnished in aid of execution, where plaintiff fails to recover judgment against him.

2. JUDGMENT (§ 480) — CONCLUSIVENESS — COLLATERAL ATTACK.

Where the court in garnishment had jurisdiction of the parties and of the subject-matter, its judgment, even if erroneous because of the misconstruction of the garnishment statute as to authorizing allowances to the garnishee, is binding on the parties in a collateral proceeding.

3. EXECUTION (§ 222) — SALES — NOTICE TO OWNER — STATUTES.

Gen. St. 1865, c. 160, § 43, providing that, when real estate situated in a different county from that in which the execution defendant resides is sought to be sold under execution, plaintiff must give notice to defendant residing in the state, does not entitle a nonresident to notice, and does not require notice on his attorney in fact, residing in the state and in a different county from that where the land sought to be sold is situated.

4. EXECUTION (§ 275) — SALES — NOTICE TO OWNER — STATUTES.

The failure to give an execution defendant notice of sale, as required by Gen. St. 1865, c. 160, § 43, is a mere irregularity not affecting the validity of the sale.

5. EXECUTION (§ 258) — SALES — FAILURE TO SUBDIVIDE LAND SOLD — COLLATERAL ATTACK.

The failure of the officer selling land under execution to subdivide the land is an irregularity of which the execution defendant alone may take advantage, and a grantee in a deed executed by the attorney in fact of the execution defendant subsequent to the sale cannot collaterally attack the sale on the ground that the land was sold in lump.

6. EXECUTION (§ 254) — SALE — MOTION TO SET ASIDE — DETERMINATION — CONCLUSIVENESS.

An execution was made returnable to the October term, 1871, of the St. Louis county circuit court, which was the first term after the execution was issued on May 27, 1871. The officer selling the land failed to subdivide it, but sold it in a lump. The execution defendant filed a motion in the circuit court of St. Louis county to have the sale set aside on that ground. The court denied the motion, and no appeal or writ of error from the judgment was taken. The land sold was situated in another county. Held, that the decision of the circuit court of St. Louis county was res judicata on the issue of the validity of the sale; the execution debtor having acted in compliance with Gen. St. 1865, c. 160, § 4, in force at the time.

7. APPEAL AND ERROR (§ 1153) — DISPOSITION OF CASE ON APPEAL.

Under Rev. St. 1899, § 866 (Ann. St. 1906, p. 815), requiring the Supreme Court on appeal to give such judgment as the trial court should have given, etc., the Supreme Court on appeal in a suit to quiet title has authority to modify the judgment erroneously awarding land to defendant in spite of his disclaimer of any interest therein, by vesting title thereto in plaintiff.

Appeal from Circuit Court, Stoddard County; J. L. Fort, Judge.

Action by W. W. Norman against George W. Eastburn and others. From a judgment for defendants, plaintiff appeals. Modified and affirmed.

James F. Green and Ernest A. Green (W. H. Miller, of counsel), for appellant. Russell & Deal and Ralph Wammack, for respondents.

GANTT, P. J.

This was an action instituted by plaintiff, W. W. Norman, against George W. Eastburn, George F. Taylor, Mercer D. Wilson, and Joseph T. Wilson, under section 650, Rev. St. 1899 (Ann. St. 1906, p. 667), to quiet title to certain real estate in Stoddard county of this state.

Plaintiff alleged that he was the owner in fee simple of section 24, township 25, range 12, containing 640 acres, and the north half of section 23, township 25, range 12, containing 320 acres, in all 960 acres; that the defendants claim some interest in said lands, the character and nature of which was to petitioner unknown, but the same is adverse to the title of plaintiff; that George W. Eastburn and George F. Taylor were nonresidents of Missouri, so that the ordinary process of law could not be served upon them, and prayed an order of publication notifying them of the commencement of this suit. Plaintiff further stated that the land herein described is timbered land and not in the actual possession of any one, and that he did not know whether the interests of the various defendants were joint or several. He prayed that the court would hear the testimony and decree the title, estate, and interest of the parties severally in and to the same. At the return term George W. Eastburn and George F. Taylor filed their separate answers denying generally each and every allegation in the petition; but later George W. Eastburn filed his separate answer to the plaintiff's petition and to any pleading which might by filed by the defendants Mercer D. Wilson and Joseph T. Wilson, in which he denied that the plaintiff, W. W. Norman, and the said defendants Wilson were the owners of or had any right, title, or interest in the north half of section 23 and all of section 24 except the east of the southwest quarter, all in said township 25, range 12; that defendant Eastburn not only claimed to own, but in fact did own, and had a good fee-simple title to, all the lands in plaintiff's petition described, except the east half of the southwest quarter of said section 24, of which last-mentioned piece defendant Eastburn disclaimed any right, title, or interest, and alleged that he had no knowledge or information to form a belief as to who was the true owner thereof.

For further answer the defendant Eastburn says: That on the 10th day of January, 1870, the circuit court of St. Louis county, Mo., a court of general jurisdiction, having jurisdiction of the parties and subject-matter in a suit therein pending wherein John L. Paxson was plaintiff and Henry Bauer and H. J. Schaefer were garnishees of the Pacific Mutual Insurance Company, defendant, rendered a judgment in favor of said garnishees against said John L. Paxson for the sum of $15 each and costs, upon which judgment execution was ordered issued. That on the 25th day of May, 1871, the circuit court of St. Louis county, Mo., a court of general jurisdiction, having jurisdiction of the parties and subject-matter in a suit therein pending wherein John L. Paxson was plaintiff and Henry Bauer was garnishee of the Pacific Mutual Insurance Company, defendant, rendered a judgment in favor of Henry Bauer against John Paxson for $15 and costs, upon which judgment execution was ordered issued forthwith upon the motion of the garnishee. That on the 27th day of May, 1871, the clerk of the circuit court of said St. Louis county issued executions numbered 299 and 300, respectively, upon the aforesaid judgment, and directed them to the sheriff of Stoddard county, Mo. That on the 30th day of May, 1871, said sheriff of Stoddard county, Mo., by virtue of the authority vested in him by said execution so issued as aforesaid, levied upon and seized the real estate now in controversy as the property of John L. Paxson, and, after having given at least 20 days' notice of the real estate to be sold and of the time, place, and terms of sale of each, published in the Southeast Reporter, a newspaper published in the town of Bloomfield in said county of Stoddard, did on the first day of August, 1871, during the May adjourned term of the circuit court of the said county of Stoddard, and while said court was in session between the hours of 10 o'clock a. m. and 5 o'clock p. m. of said day, at the courthouse door in the town of Bloomfield in the said county of Stoddard, expose to public sale to the highest bidder for cash in hand the real estate in controversy, and at said sale George W. Kitchen and George G. Pollard became the purchasers of the real estate in controversy, they being the highest and best bidders for said real estate; and thereupon said sheriff executed to said purchasers deeds in due form of law conveying to them all the right, title, and interest of the said John L. Paxson in and to the real estate herein described, and said sheriff made return on said execution accordingly to the October term, 1871, of the circuit court of St. Louis county, to which term they were returnable. That on the 20th day of October, 1871, during the October term, 1871, of the circuit court of said St. Louis county, the said John L. Paxson, through his attorneys, H. H. Bedford and George W. Hall, filed a motion to set aside the sales made by the sheriff of Stoddard county under said execution, and caused notice thereof to be served on the said George W. Kitchen and George G. Pollard. That on December 22, 1871, the said John L. Paxson and the said George W. Kitchen and George G. Pollard filed a stipulation of the said circuit court of St. Louis county that ex parte affidavits might be taken and used in the trial of said motion as fully as if the same facts appeared in deposition. That on Thursday, the 2d day of May, 1872, it being the April term, 1872, of said circuit court, depositions in said motion were opened and filed, and on the 10th day of May, 1873, it being the April term, 1873, of said circuit court, affidavits and counter affidavits were filed in said cause. That on the 19th day of May, 1873, it being the April term, 1873, of said circuit court of St. Louis county, the said circuit court, after having heard and fully considered the motion to set aside the sheriff's sale made under and by virtue of said execution, overruled the same, and on May 28, 1873, it being the April term, 1873 of said circuit court, the motion for a rehearing pending in said cause was...