Rogers v. Wilson

• Decision Date: 18 May 1909
• Citation: 220 Mo. 213,119 S.W. 369
• Parties: ROGERS v. WILSON.
• Court: Missouri Supreme Court

119 S.W. 369

220 Mo. 213

ROGERS v. WILSON.

Supreme Court of Missouri, Division No. 2.

May 18, 1909.

1. EXECUTION (§ 248)—SALE—VACATION— GROUNDS.

An action to set aside a sheriff's sale is a direct attack on the validity thereof, so that it may be vacated for irregularity in the proceedings had prior thereto, including the premature return of the execution.

2. TIME (§ 9)—COMPUTATION.

Time within which an act must be done should be computed by excluding the first day and including the last.

3. JUSTICES OF THE PEACE (§ 135)—EXECUTION—RETURN—TIME.

Where an execution issued by a justice of the peace is returned unexecuted before the time fixed by law, it is void.

4. JUSTICES OF THE PEACE (§ 135)—EXECUTION—RETURN—RENEWAL.

When an execution has been returned to the justice it then becomes functus officio, and can be renewed only in the manner provided by Rev. St. 1899, § 4038 (Ann. St. 1906, p. 2199).

Appeal from Circuit Court, Douglas County; Jno. T. Moore, Judge.

Action by Caloway Rogers against Eli Wilson. Judgment for defendant, and plaintiff appeals. Reversed and remanded.

Burkhead & Clarke, for appellant.

BURGESS, J.

This is an action to set aside a sheriff's deed, made March 30, 1901, conveying to defendant a small parcel of land in Douglas county, Mo. The levy and sale were made by virtue of a transcript execution issued out of the circuit court of Douglas county on March 6, 1901, based upon a justice's transcript of a judgment by default rendered by him against the plaintiff in this suit on December 2, 1899, and filed in said circuit court on June 27, 1900, upon which judgment the justice issued an execution December 2, 1899, returnable in 90 days. Upon this execution the constable made the following return: "I hereby certify that I served within execution Dec. 8th, 1899. For serving execution, $.50." Underneath this, in pencil, was the following: "Now on this 1st day of March, 1900, this execution is by me returned not satisfied, for the reason that no property belonging to the deft. could be found subject to execution. J. D. Hartley, constable." The justice's transcript was made December 29, 1899, and showed that that execution was returned by the constable on the 8th day of December, 1899. The court found the issues for the defendant, and rendered judgment against plaintiff for costs. Plaintiff appeals.

The statute (section 4034, Rev. St. 1899 [Ann. St. 1906, p. 2197]) provides that an execution issued by a justice of the peace shall be directed, except where it is otherwise specially provided, to the constable of the township where the justice resides, and it shall run against the goods and chattels of the person against whom it is issued, and be dated on the day it is issued, and be returnable in 90 days from its date.

Sections 4018, 4019 (Ann. St. 1906, p. 2191), confer the right upon the person in whose favor the judgment may be to take and file a transcript of the judgment in the office of ...