Rosenzweig v. Ferguson

• Decision Date: 25 October 1941
• Docket Number: No. 36651.,No. 36650.,36650.,36651.
• Citation: 158 S.W.2d 124
• Parties: GRANT I. and MATHILDE ROSENZWEIG, Husband and Wife, Appellants, v. CLAUDE A. FERGUSON, GRANT I. and MATHILDE ROSENZWEIG, Husband and Wife, Appellants, v. CLAUDE A. FERGUSON, No. 36650.
• Court: Missouri Supreme Court

158 S.W.2d 124

GRANT I. and MATHILDE ROSENZWEIG, Husband and Wife, Appellants, v. CLAUDE A. FERGUSON, GRANT I. and MATHILDE ROSENZWEIG, Husband and Wife, Appellants, v. CLAUDE A. FERGUSON, No. 36650.

No. 36650.

No. 36651.

Supreme Court of Missouri.

Division Two, October 25, 1941.

Rehearing Denied, December 16, 1941.

Motion to Transfer to Banc Overruled, December 16, 1941.

Motion to Reconsider Motions for Rehearing and to Transfer to Banc Overruled, February 4, 1942.

Appeals from Jackson Circuit Court. — Hon. Darius A. Brown and Hon. Thomas J. Seehorn, Judges.

AFFIRMED.

Charles E. McCoy and Grant I. Rosenzweig.

(1) Statutes: Sec. 3180 — Equitable mechanic's liens; Sec. 3183 — No separate mechanic's lien action; Sec. 3184 — Writ of assistance; Sec. 3186 — Such action exclusive of other mechanic's lien actions and unless otherwise provided should be governed by the Civil Code generally; Sec. 3164 — All mechanic's lien actions except as otherwise provided shall be subject to the Civil Code; Sec. 3171 — Execution shall be special and conform to judgment and returnable as ordinary; Sec. 1520 — Suits to determine title; Sec. 1521 — Shall conform to the general Code; Sec. 1105 — Life of judgment lien three years, subject to reviver; Sec. 1106 — Reviver may be had; Sec. 1107 — Reviver, if applied for in three years, shall continue unbroken for additional three years, but if applied for after three years takes effect only from the new revived; Sec. 1108 — Reviver applied for in three years will continue the lien unbroken; Sec. 1109 — Scire facias necessary; Sec. 1112 — If on service contrary reason does not appear, judgment reviver shall be rendered good for another three years; Sec. 1113 — Execution may issue at any time within ten years; Sec. 1114 — Sale under junior shall pass title only subject to lien of prior judgment then in force; Sec. 1152 — Execution in conformity with decree; Sec. 1155 — Execution returnable at the next succeeding term; Sec. 758 — Notices in writing; Sec. 760 — Five days' notice. (2) Judicial decisions. There is no mechanic's lien statute fixing the life of such judgment lien. Any feature not fixed by such special statute is by mechanic's lien statute expressly left subject to the General Code. Life of all judgment liens under the Code is three years, which is not extended by appeal, with or without bond, or by motion for new trial, or by any other procedure than reviver, which itself means application, notice, court hearing and new judgment of court. No law makes execution a substitute for reviver. Even where reviver is obtained, it is not retroactive to defeat titles previously vested, unless application is made during the lien life. Bobb v. Taylor, 193 S.W. 800; Everett v. Marston, 186 Mo. 587; Schwab v. St. Louis, 274 S.W. 1058; Kansas City v. Field, 226 S.W. 33; Kansas City v. Field, 270 Mo. 500; Eyssell v. St. Louis, 168 Mo. 607; Chouteau v. Nuckells, 20 Mo. 442; Greene v. Dougherty, 55 Mo. App. 217; King v. Hayes, 9 S.W. (2d) 538; Pullis v. Pullis, 157 Mo. 565; Crittenden v. Leitensdorfer, 35 Mo. 239; Ex parte Craig, 130 Mo. 590; Rodney v. Gibbs, 184 Mo. 1; Stid v. Missouri, 11 Mo. 411; Sublette v. St. Louis, 81 Mo. App. 327; Sublette v. St. Louis, 96 Mo. App. 113; Christy v. Flanagan, 87 Mo. 670, 14 Mo. App. 253. (3) The particular court division which rendered judgment has not exclusive jurisdiction of all matters which may arise. Goddard v. Delaney, 181 Mo. 564; Graff v. Continental, 35 S.W. (2d) 926. (4) Neither is a motion to quash the sole method, after judgment and sheriff's deed, of reaching decision on the effect thereof. Oldham v. Wade, 273 Mo. 231; Skelton v. Franklin, 224 Mo. 342; Pocoke v. Peterson, 256 Mo. 501; State ex rel. Waters v. Hunter, 98 Mo. 386; Hudson v. Wright, 204 Mo. 412; Scrutchfield v. Sauter, 119 Mo. 615; Force v. Van Patton, 149 Mo. 446; Mellier v. Bartlett, 89 Mo. 134; Birkard v. Hahne, 17 S.W. (2d) 636; Keyte v. Plemmons, 28 Mo. 104; State ex rel. Snider v. Bierwirth, 47 Mo. App. 551; Spring v. Giefing, 289 S.W. 825. (5) Retention of jurisdiction in a final decree cannot prolong jurisdiction, being mere surplusage and inoperative. State ex rel. v. Muench, 217 Mo. 124; Wilson v. Reid, 270 Mo. 400; Irwin v. Burgan, 28 S.W. (2d) 1017; Miller v. Connor, 177 Mo. App. 630; Hill v. St. Louis, 20 Mo. 581; Ball v. Peper, 141 Mo. App. 26; St. Louis v. Crow, 171 Mo. 272; State ex rel. v. Mulloy, 15 S.W. (2d) 809. (6) No statute has defeated and no argument or deduction can defeat the ancient and constantly exercised jurisdiction of courts of general equity power, especially after execution of sheriff's deed, to determine validity and effect of the deed and proceedings upon which deed is based. McKenzie v. Donnell, 208 Mo. 46; Charles v. White, 214 Mo. 187; Raney v. Home, 246 S.W. 57; Armor v. Lewis, 252 Mo. 568; Guinan v. Donnell, 201 Mo. 173; Ratliff v. Graves, 132 Mo. 76; Ehlers v. Potter, 219 S.W. 915; Burton v. Look, 162 Mo. 502; Staub v. Phillips, 271 S.W. 365; Gray v. Clement, 286 Mo. 100, also 296 Mo. 497; Smoot v. Judd, 161 Mo. 673; Jefferson v. Blaser, 300 S.W. 778; Russell v. Interstate, 112 Mo. 41; Merchants v. Evans, 51 Mo. 335; Matthews v. O'Donnell, 233 S.W. 451; Chilton v. Hedges, 204 S.W. 900; State ex rel. v. Center, 262 Mo. 490; Loud v. St. Louis, 249 S.W. 629; Barber v. St. Joseph, 183 Mo. 451; Lackey v. Lube, 36 Mo. 115. (7) Court order approving execution sale and ordering deed is not a judicial decision as to its effect or as to title. If it were judicial, it would be a new decree added to former decree, and thereby void. It is administrative at best; and in the absence of notice to parties affected, it is not even administrative but void. George v. Middough, 62 Mo. 549; Clamorgan v. O'Fallon, 10 Mo. 112; Merchants v. Evans, 51 Mo. 535. (8) None of the proceedings in the mechanic's lien suit can be regarded as res adjudicata, so as to bar another suit, unless the former pleadings covered and adjudicated the same issues. Issues not arising until long after the former decree were not and could not possibly be adjudicated in the former decree. The effect of three-year limitation as to the original decree and the effect as to proceedings after original decree culminating in sheriff's deed, recorded, could not arise until, years after the original decree, such limitation and sheriff's deed had become facts. Harvest v. American Express, 192 Mo. App. 106; Ridgely v. Stillwell, 27 Mo. 128; Nevins v. Coleman, 200 S.W. 445; Garland v. Smith, 164 Mo. 1; St. Joseph v. Union, 116 Mo. 636; Bray v. Land, 221 S.W. 818. (9) This execution was issued May 7, returnable to the following term, beginning May 9 and running to September 19 — the decree reciting that there be no levy upon the lot until after there first be a return unsatisfied as to Fidelity Trustees, primary debtors. The law states that a nulla bona return by a sheriff cannot be made without diligent search, not during a part but throughout the whole of the term at which the execution is returnable. In this instance, the sheriff's return and likewise his report of sale, filed in July, reported diligent search as to Fidelity Trustees only from May 7 to May 9, and levy upon the lot May 7, being thereby premature, violative of the decree itself, and making his levy upon the lot inoperative and void. Rogers v. Wilson, 220 Mo. 213; Huhn v. Lang, 122 Mo. 600; Marks v. Hardy, 86 Mo. 232; Reed v. Lowe, 163 Mo. 519; Langford v. Few, 146 Mo. 142; Dillon v. Rash, 27 Mo. 243. (10) The execution was issued to enforce a lien created by the decree. But the lien so to be enforced, was at the time of execution no longer in force, being in fact dead at that time, its life having expired by law a year before execution. A lien once dead remains dead until revived. There was not then any reviver or even application for reviver, and never has been. Execution to enforce an expired lien was therefore an order to enforce a nullity. Wolz v. Venard, 253 Mo. 67; Hill v. Arnold, 177 S.W. 343; Christy v. McKee, 94 Mo. 241; Bank v. Wells, 12 Mo. 361; Durrett v. Hulse, 67 Mo. 201; Wise v. Darby, 9 Mo. 132; Beedle v. Mead, 81 Mo. 297; Benoist v. Rothschild, 145 Mo. 399; Kaes v. Gross, 92 Mo. 647; Palmer v. Omer, 295 S.W. 123; Mullen v. Hewitt, 103 Mo. 639; Woods v. Wilson, 108 S.W. (2d) 12.

George K. Brasher, Arthur E. Johnson and Lathrop, Crane, Reynolds, Sawyer & Mersereau for respondent.

(1) Appellants' remedy was to proceed in the original equity mechanics' lien action (a) by motion to stay the sale, (b) quash the execution, or (c) to set aside the sale. The remedy is preclusive and must be followed. Secs. 1223, 3180, 3183, 3186, R.S. 1929; State ex rel. Ford v. Hogan, 27 S.W. (2d) 21, 324 Mo. 1130; Jones v. Overall, 13 S.W. (2d) 581, 223 Mo. App. 266; Macklind Inves. Co. v. Ferry, 108 S.W. (2d) 21, 341 Mo. 493; Stanton v. Thompson, 234 Mo. l.c. 11, 136 S.W. 698; Dezino v. Drozda Realty Co., 13 S.W. (2d) 659; Irwin v. Burgan, 28 S.W. (2d) 1017, 325 Mo. 309; State ex rel. Abeille Fire Ins. Co. v. Sevier, 73 S.W. (2d) 361, 335 Mo. 269. (2) The judgment liens under which this property was sold were special liens and did not expire until ten years after their rendition. Secs. 1113, 1104, 1105, 1106, R.S. 1929; Hockaday v. Lawther, 17 Mo. App. 636; Schwab v. St. Louis, 274 S.W. 1058, 310 Mo. 116; Wahl v. Murphy, 99 S.W. (2d) 32. (3) The sheriff did make nulla bona return at return term of execution and thereafter sold the real estate and made due return and report of all that he did under said execution. Secs. 2019, 1152, 1155, 3171, R.S. 1929. (4) Levy on real estate not necessary in mechanics' lien action. Sec. 1179, R.S. 1929; St. Louis Brewing Assn. v. Howard, 150 Mo. 445, 51 S.W. 1046. (5) Appellants had due notice and knowledge of all proceedings. Sec. 1198, R.S. 1929. (6) A judgment is not final until the motion for new trial has been passed upon and no execution can issue except upon a final judgment. Costello...