Norman v. Eastburn

• Citation: 130 S.W. 276,230 Mo. 168
• Parties: W. W. NORMAN, Appellant, v. GEORGE W. EASTBURN et al
• Decision Date: 19 July 1910
• Court: Missouri Supreme Court

130 S.W. 276

230 Mo. 168

W. W. NORMAN, Appellant, v. GEORGE W. EASTBURN et al

Supreme Court of Missouri, Second Division

July 19, 1910

Appeal from Stoddard Circuit Court. -- Hon. J. L. Fort, Judge.

Affirmed (as modified).

James F. Green and Ernest A. Green for appellant; W. H. Miller of counsel.

(1) The judgments on which were made the execution sales under which defendants claim, are void, inasmuch as the court rendering them had no authority in law for the rendition of a judgment for an allowance to a garnishee in that kind of proceeding. Mfg. Co. v. Milling Co., 79 Mo.App. 158; G. S. 1865 chap. 142, secs. 20-23, p. 575; R. S. 1899, sec. 3454; R. S 1845, secs. 35, 36, p. 141; R. S. 1855, secs. 72-74, p. 259; Stewart v. Anderson, 19 Mo. 479; O'Reilly v Cleary, 8 Mo.App. 192; Simmons v. Railroad, 19 Mo.App. 546; Hoover v. Railroad, 115 Mo. 83. (2) The execution sales were furthermore void because the lands sold were situated in a different county from that wherein the execution debtor, Paxson, and his attorney in fact, resided, and no notice thereof was given to said execution debtor or to his attorney in fact. G. S. 1865, sec. 43, p. 645; R. S. 1899, sec. 3199; Harness v. Cravens, 126 Mo. 259; Welch v. Mann, 193 Mo. 304; Plaster v. Grabeel, 160 Mo. 669; Young v. Schofield, 132 Mo. 650; Walter v. Scofield, 167 Mo. 537. (3) The sales were void for the additional reason that the lands were sold, not in the legal subdivisions, but in a lump. G. S. 1865, secs. 30 and 54, pp. 644 and 646; R. S. 1899, secs. 3185 and 3210; Smith v. Cooperage Co., 100 Mo.App. 153; Yeaman v. Lepp, 167 Mo. 61; Corrigan v. Schmidt, 126 Mo. 304; Gordon v. O'Neil, 96 Mo. 350; French v. Edwards, 13 Wall. 506; Roser v. Trust Co., 118 Ga. 181; Williamson v. White, 28 S. E. (Ga.) 846; State ex rel. v. Elliott, 114 Mo.App. 562; State ex rel. v. Richardson, 21 Mo. 420; Martin v. Barber, 140 U.S. 634. (4) The proceedings in the circuit court of St. Louis, upon the motion to set aside the sale of the lands in controversy, are not res adjudicata between this plaintiff and these defendants. Clowser v. Noland, 72 Mo.App. 217; Dillinger v. Kelley, 84 Mo. 561; Springfield v. Plummer, 89 Mo.App. 515; Sherer v. Akers, 74 Mo.App. 217; State to use v. Bierwirth, 47 Mo.App. 551; Force v. Van Patton, 149 Mo. 446; American Wine Co. v. Scholer, 85 Mo. 496; Brennan v. Moule, 108 Mo.App. 336; Hathaway v. Railroad, 94 Mo.App. 343. (5) The court erred in decreeing that the defendants were the owners of the east half of the southwest quarter of section 24, township 25, range 12 east, in Stoddard county, they having disclaimed any right, title or interest therein. Railroad v. Iron Works, 117 Mo.App. 153; Graton v. Land Co., 189 Mo. 322; Gage v. Cantwell, 191 Mo. 698.

Russell & Deal and Ralph Wammack for respondents.

(1) (a) The circuit court of St. Louis county had jurisdiction of the parties and of the subject-matter in the cases of John L. Paxson, plaintiff, against Henry Bauer and Henry Schaefer, garnishees of the Pacific Mutual Insurance Company, defendant, and the judgments rendered in those cases were valid and binding. They were not void judgments, even though the court may have misconstrued the law in making the allowances to the garnishees. Chouteau v. Gibson, 76 Mo. 38; Murphy v. DeFrance, 101 Mo. 159; Driving Park v. Kansas City, 174 Mo. 442; Brennan v. Maule, 108 Mo.App. 339. (b) All the issues which might have been raised and litigated by Paxson in his motion filed to set aside the execution sale are as completely barred by the judgment of the circuit court overruling that motion as if they had been directly adjudicated and included in the verdict. Donnell v. Wright, 147 Mo. 647; Hamilton v. McClain, 169 Mo. 51; State ex rel. v. St. Louis, 145 Mo. 551; Lyman v. Harvester Co., 68 Mo.App. 637. (c) Paxson having failed to deny or except to the answers of the garnishees, they were entitled to a judgment for costs the same as if they had been defendants in an ordinary case wherein Paxson was plaintiff. G. S. 1865, secs. 19 and 23, p. 575. (d) After the judgments had been rendered, it was the duty of the clerk to issue executions "forthwith," unless otherwise directed by the party in whose favor the costs were awarded. And when issued and placed in the hands of the sheriff of Stoddard county he was authorized to levy upon and sell the real estate of Paxson to satisfy them. G. S. 1865, sec. 31, p. 691; Bank v. Wharters, 52 Mo. 34; Baird v. Given, 170 Mo. 302; State ex rel. v. Ashbrook, 40 Mo.App. 64. (e) The executions were made returnable to the October term, 1871, which was the first term of the St. Louis County Circuit Court after the executions were issued on May 27, 1871. G. S. 1865, sec. 4, p. 640. (f) The motion filed by Paxson at the return term of the execution, to set aside the sale on account of the failure of the sheriff to sell the land in legal subdivisions and on account of the failure of the execution plaintiffs to notify Paxson of the issuing of the same, was made at the proper term. Nelson v. Brown, 23 Mo. 13; Mellier v. Bartlett, 89 Mo. 134. (2) Under the garnishment law in force at the time, the St. Louis County Circuit Court had authority to "render judgment in favor of such garnishee, against the plaintiff for a sum sufficient to indemnify him for his time and expenses," and had authority to adjudge the costs as in ordinary cases between plaintiff and defendant. G. S. 1865, secs. 1 and 2, p. 573, and secs. 22 and 23, p. 575; O'Reilly v. Cleary, 8 Mo.App. 192. (3) (a) According to his own testimony, Paxson was a non-resident of the State when the executions were issued and when the sale took place. Before he became a non-resident, he resided in Stoddard county, where the land sold under the execution is situated. Under such circumstances he was not entitled to notice. G. S. 1865, sec. 43, p. 645. (b) Had he been entitled to notice, the failure to give it was a mere irregularity which did not render the sale void. Young v. Schofield, 132 Mo. 668; Draper v. Bryson, 17 Mo. 71; Curd v. Lackland, 49 Mo. 451; Harness v. Cravens, 126 Mo. 260. (4) Selling the real estate in a "lump" did not render the sale void, and such question cannot be reached in this collateral proceeding. Hays v. Perkins, 109 Mo. 108; Lewis v. Whitten, 112 Mo. 328; Bouldin v. Ewart, 63 Mo. 336; Ables v. Webb, 186 Mo. 233; Hubbard v. Glass Works, 188 Mo. 18; Rector v. Hart, 8 Mo. 448; Fine v. Public Schools, 30 Mo. 166; Kelley v. Hart, 61 Mo. 468. (5) (a) The validity of the sale of the lands in controversy was litigated in the circuit court of St. Louis county on a motion filed by Paxson in which he assigned the same reasons now assigned by appellant. Therefore, the question of the validity of the sale itself is res adjudicata. Chouteau v. Gibson, 76 Mo. 38; Johnson v. Latta, 84 Mo. 139; Murphy v. DeFrance, 101 Mo. 151; Young v. Bird, 124 Mo. 590. (b) The judgment of the St. Louis County Circuit Court upholding the sale of the lands in controversy, if binding on Paxson, is also binding on appellant Norman, who at best is only grantee by quitclaim deed and against his will. Foote v. Clark, 102 Mo. 394; Cooley v. Warren, 53 Mo. 166; Barton Bros. v. Martin, 60 Mo.App. 351. (c) The validity of the sheriff's sale cannot be impeached in a collateral proceeding, such as ejectment or a suit to determine title under section 650, nor can a judgment against a party duly notified and brought within the jurisdiction of the court be reversed or annulled in a collateral proceeding. Martin v. McClain, 49 Mo. 361; Hardin v. Lee, 51 Mo. 241; Knoll v. Woelken, 13 Mo.App. 275; Myers v. Miller, 55 Mo.App. 338.

GANTT, P. J. Burgess and Fox, JJ., concur.

OPINION

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, Revised Statutes 1899, to quiet title to certain real estate in Stoddard county.

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 claimed 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 non-residents 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 interest 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 answer 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 be 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 half of the southwest quarter of section 24, 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, in which last mentioned...