Reed v. Lowe
| Decision Date | 12 June 1901 |
| Citation | 63 S.W. 687,163 Mo. 519 |
| Parties | REED v. LOWE, Appellant |
| Court | Missouri Supreme Court |
Appeal from Clinton Circuit Court. -- Hon. Wm. S. Herndon, Judge.
Affirmed.
H. T Herndon and Wilton & Hughes for appellant.
(1) It is not necessary to file in the circuit clerk's office a transcript of all the entries in the docket of a justice of the peace. It is only necessary to file a transcript of the judgment rendered by the justice of the peace. R. S. 1889 sec. 6286; Franse v. Owens, 25 Mo. 329. Recital in justice's docket of immaterial matters is of no consequence. Nickey v. Lumber Co., 75 Mo.App. 54. (2) The execution was not void for any or all of the reasons set up in the bill. (a) The fourth reason assigned in the bill is that the transcript shows the execution issued by the justice was not made returnable "in ninety days" after date. This, if true, would not make the execution issued by circuit clerk void, nor invalidate the sale, or purchaser's title. Whitman v. Taylor, 60 Mo 137; Sachse v. Clingensmith, 97 Mo. 406; Carson v. Walker, 16 Mo. 68; Blair v. Ship, Charles Carter, 4 Cranch. 332; Gaston v. White, 46 Mo. 488; Murry v. Loften, 15 Mo. 626; Norton v. Quimby, 45 Mo. 388; Gorman v. Stanton, 5 Mo.App. 585; Perkins v. Quigley, 62 Mo. 498. But the execution was not prematurely issued nor was the execution issued by the justice returnable in a shorter time than required by law. 2 Wag. Stat., 1872, pp. 840 and 841, art. 8, secs. 3 and 4; Gurney v. Moore, 131 Mo. 662; Estes v. Long, 71 Mo. 605. An execution returnable in less time than the law requires, is not void, but runs full time by force of the law. Estes v. Long, 71 Mo. 605. The contrary was held in Staples v. Chouteau, 11 Mo. 382, but this view has "since then been totally discarded in Norton v. Quimby, 45 Mo. 388." Leonard v. Sparks, 117 Mo. 112. (b) The fourth reason assigned in the bill for the contention that the execution issued by the circuit clerk was void is, that the transcript filed in the office of the clerk of the circuit court does not show that the execution issued by the justice was returned by the constable, "not satisfied, no goods or chattels being found upon which to levy the same." This position is untenable. The statute only requires a transcript of the judgment, and not of the execution or its return, and any such matter would be mere surplusage. R. S. 1889, secs. 6286 and 6287; Waddell v. Williams, 50 Mo. 116; Whitman v. Taylor and Caldwell Co., 60 Mo. 127; 2 Wag. Stat. 1872, p. 812, sec. 2. The statute did not require the justice to enter any such matter in his docket, and if he did it is no evidence of anything. Palmer v. Hunter, 8 Mo. 512; Brown v. Pearson, 8 Mo. 519. The statute relating to issuing executions on transcripts on a justice's judgment has been changed, and the earlier cases do not apply. Sachse v. Clingensmith, 97 Mo. 411. The recitals in sheriff's deed are to be taken as prima facie true. Jordan v. Surghnor, 107 Mo. 520. (3) The general principle to be deduced from all the authorities is, that the title of a purchaser, not himself in fault, can not be impaired at law, nor in equity, by showing any mere error or irregularity in the proceeding. Freeman on Executions, sec. 339; Hewitt v. Weatherby, 57 Mo. 276; Cabell v. Grubbs, 48 Mo. 353; Norton v. Quimby, 45 Mo. 338. (4) All the facts alleged in the bill, as reasons for the execution sale and sheriff's deed being void, were matters of record. This being so, plaintiff has no standing in a court of equity because plaintiff could plead them, in answer to any possessory action by defendant, as successfully as he could plead the decree of a court of equity. Peak v. Laughlin, 49 Mo. 162; Gamble v. St. Louis, 12 Mo. 617; Clark v. Ins. Co., 52 Mo. 272; Mason v. Black, 87 Mo. 329; Verdin v. St. Louis, 131 Mo. 26. (5) The bill ought to have been dismissed for the reason that the same issues were pending between same parties in the partition suit, and could and should have been determined in that case. State v. Daugherty, 45 Mo. 294; Beach v. Norton, 8 Conn. 71; Prosser v. Chapman, 29 Conn. 515; Peck v. Kirtz, 15 N.Y. 598; Curd v. Lewis, 31 Ky. 351; Robbins v. Conley, 47 Mo.App. 502. (6) The bill ought to have been dismissed and a finding and decree entered for defendant, for the reason that if plaintiff ever had any equitable rights to the relief asked, he had lost it by reason of his laches. Cline v. Vogle, 90 Mo. 250; Bliss v. Prichard, 67 Mo. 183; Kroening v. Goehri, 112 Mo. 648; Quinn v. Perkins, 159 Ill. 572; Kerfoot v. Billings, 160 Ill. 563; Jackson v. Roosvelt, 13 Johns. (N. Y.) 97; Jackson v. Robins, 16 Johns. (N. Y.) 537; Nagel v. Macy, 9 Cal. 426; Cockrill v. Hutchinson, 135 Mo. 67. The time fixed by law within which a right of action must be prosecuted, constitutes also a bar in equity, if a party goes into that court for redress. Perry v. Craig, 3 Mo. 516; Bauer v. Gray, 18 Mo.App. 173; Hoester v. Sammelmann, 101 Mo. 619; Bank v. Bank, 107 Mo. 133. (7) The bill on its face shows that it was barred by statutes of limitations. Hunter v. Hunter, 50 Mo. 445; Tapley v. Tapley, 50 Mo. 589; Rogers v. Brown, 61 Mo. 187; Kelley v. Hunt, 74 Mo. 561; Reando v. Misplay, 90 Mo. 250; White v. Pengry, 25 Mo.App. 547; Reed v. Painter, 145 Mo. 341; Courtney v. Black, 150 Mo. 245; Lockland v. Smith, 5 Mo.App. 165.
Turney & Goodrich and W. S. Herndon for respondent.
The execution issued by the clerk of the circuit court was unauthorized and void. (1) A party desiring to enforce collection of a judgment of a justice of the peace, by an execution from the circuit clerk's office, must file with the clerk a certified transcript of such judgment. From the date of the filing, the judgment is in many respects the same as a judgment of the circuit court; "but no execution shall be issued out of the court where the transcript is filed, if the defendant is a resident of the county, until an execution shall have been issued by the justice, directed to the constable of the township in which the defendant resides," and "returned that the defendant has no goods or chattels whereof to levy the same." These facts must be shown by the transcript or by a certified copy of the execution and return filed in the clerk's office. The defendant in this case was a resident of the county. The only paper filed with the clerk was the transcript, which was filed more than a year after the execution was returned. The only evidence that the two prerequisites to the issue of an execution by the clerk had been complied with, were these recitals in the transcript. "Execution issued returnable on the twelfth day of May, 1873." 2 Wag. Stat 1872, p. 839, sec. 14; Coonce v. Mundy, 3 Mo. 374; Langford v. Few, 146 Mo. 142. The appellant's case is not aided by the recitals in the sheriff's deed. Sachse v. Clingensmith, 97 Mo. 412. A sheriff's deed without the recitals is admissible in evidence. But when it is shown by the evidence, as it was in this case, that the defendant was a resident of the county, it then devolves on the party claiming under the deed, to show the existence of the conditions precedent, to-wit: that an execution was issued by the justice, directed to the constable of the township in which the defendant resided; and that the constable made the proper return. Langford v. Few, 146 Mo. 142; Jordon v. Senghnor, 107 Mo. 520; Perkins v. Quigley, 65 Mo. 498; Carpenter v. King, 45 Mo. 224, sec. 6; McCormick v. Fitzsimmons, 39 Mo. 24. (2) The execution issued by the justice was dated February 13, 1873, and was made returnable May 12, 1873, that is in eighty-eight days. Stevens v. Chouteau, 11 Mo. 383; 2 Wag. Stat. 1872, p. 841, sec. 3. The case of Stevens v. Chouteau is not overruled by Norton v. Quimby, 45 Mo. 388, nor by Leonard v. Sparks, 117 Mo. 103; and is expressly recognized as in force in Estes v. Long, 71 Mo. 608, and is supported by the reasons for the decision in Langford v. Few, supra. Sanders v. Rains, 10 Mo. 771; France v. Evans, 90 Mo. 474. A return made in eighty-nine days is premature. Huhn v. Lang, 122 Mo. 600. There is no analogy between the case of an execution properly issued and returned by the constable before the expiration of ninety days and this case, where an execution is issued which in terms violates a provision of the statute, and commands the constable to return it before the expiration of ninety days. All these defects are patent on the face of the transcript. Waddell v. Williams, 50 Mo. 222; Leonard v. Cox, 52 Mo. 115; Hewitt v. Weatherby, 57 Mo. 279; Downing v. Still, 43 Mo. 321. (3) There is no question of estoppel; and if any of the foregoing objections to the execution or deed are valid, the deed is void and there is no question of limitation or laches. (4) There is no limitation. Until the death of the dowress, neither the respondent nor appellant was entitled to possession. Neither could bring a suit at law against the other to test the title. Therefore, the title of neither is affected by any of the provisions of the statute of limitation. Sherwood v. Baker, 105 Mo. 472; Fischer v. Sieckman, 125 Mo. 178; Dunn v. Miller, 96 Mo. 324; Cooper v. Deal, 114 Mo. 533; Sebree v. Pattison, 92 Mo. 451; Swope v. Weller, 119 Mo. 565. (5) There is no laches. The appellant's interests have not been affected in any way by the delay, nor has the condition of the respondent been improved. Spurlock v. Sproule, 72 Mo. 503; Lindell Real Estate Co. v. Lindell, 142 Mo. 79; Newman v. Newman, 152 Mo. 414; Howell v. Jump, 140 Mo. 456; Orthwein v. Thomas, 127 Ills. 554.
E. C. Hall and F. B. Ellis also for respondent.
(1) The recitals in the execution issued from the clerk's office can not be taken as evidence of the matters in...
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