Sachse v. Clingingsmith

• Decision Date: 04 March 1889
• Citation: 11 S.W. 69,97 Mo. 406
• Parties: SACHSE v. CLINGINGSMITH et al.
• Court: Missouri Supreme Court

11 S.W. 69

97 Mo. 406

SACHSE v. CLINGINGSMITH et al.

Supreme Court of Missouri.

March 4, 1889.

APPEAL — REVIEW — NONSUIT — EXECUTION.

1. Where the rulings of the trial court are such as to entirely preclude a recovery by plaintiff, the supreme court of Missouri will review proper exceptions to such rulings after nonsuit with leave, and an unsuccessful effort to have the alleged errors corrected below. Overruling Gill v. Clark, 54 Mo. 415.

2. Rev. St. Mo. 1879, § 2999, provides that, "when defendant is a resident of the county," execution upon a justice's judgment must issue and be returned nulla bona, before an execution can issue from the circuit court on the transcript. Held that, where a sheriff's deed contains a recital that the execution was issued from the circuit court upon a transcript of judgment rendered by a justice, it will be presumed that the execution was properly issued. The validity of the proceedings under such an execution cannot be assailed collaterally, for reasons outside the record, when no want of jurisdiction appears on the face of the papers in the circuit court.

Appeal from circuit court, Cape Girardeau county; J. D. FOSTER, Judge.

Action by Theodore Sachse against Caroline Clingingsmith and others, to set aside a deed as fraudulent. Plaintiff appeals from an order refusing to take off a nonsuit.

Livins Sanford, for appellant. Oliver & Limbaugh, for respondents.

BARCLAY, J.

This is a suit to set aside a deed alleged to be fraudulent, and an interference with plaintiff's claim of title to certain land. The pleadings need not be recited at length. The petition presents the theory of plaintiff's ownership of the land in question by virtue of a purchase at an execution sale under certain proceedings, the nature of which will fully appear later on; that the execution debtor had made a fraudulent voluntary conveyance to one of the other defendants to hinder and delay creditors, especially plaintiff. This conveyance the court is asked to set aside. The answer, besides a general denial, contains a special defense asserting an equitable title in one of defendants, antedating plaintiff's present claim. A reply took issue with the new matter in the answer. At the trial plaintiff offered in evidence the sheriff's deed under which he claimed. It contained the usual recitals of levy and sale, and apt words of description and conveyance of the land in dispute. It also recited the following, viz.: "Whereas, Theodore Sachse, on the 28th day of October, 1882, before F. H. Welteke, Esq., a justice of the peace within and for Applecreek township, in Cape Girardeau county, state of Missouri, recovered against Nancy Welty forty-five dollars for debt and damages, and the sum of four dollars and forty cents for costs, upon which judgment an execution was issued and directed to the constable of Applecreek township against the goods and chattels of Nancy Welty, which execution was returned not satisfied, as appears from a transcript of the judgment aforesaid filed in the office of the clerk of the circuit court on the 13th day of March, A. D. 1883, upon which transcript of judgment an execution issued from the clerk's office of said court in favor of said Theodore Sasche and against said Nancy Welty, dated the 13th day of March, A. D. 1883, directed to the sheriff of Cape Girardeau county, and the same was to me delivered on the 13th day of March, 1883, by virtue of which said execution I, the said sheriff, did, on the 13th day of March, A. D. 1883, levy upon," etc. This deed was duly acknowledged. But the court (on objection being made) excluded the instrument. Plaintiff then offered a certified copy of the transcript of the justice's judgment on file in the circuit clerk's office. This copy recited the docket entries in the cause, including the judgment in favor of plaintiff. The certificate to the transcript was as follows: "I, F. H. Welteke, a justice of the peace, within and for Applecreek township, in Cape Girardeau county, Mo., do certify that the above is a true and correct transcript of the judgment as by me rendered in the above-entitled cause; and I further certify that an execution was issued on the above judgment, on the 28th day of October, 1882, directed to the said constable of Applecreek township, returnable in ninety days, and that the same was to me returned on the 29th day of January, 1883, not executed, and indorsed by said constable, `Not satisfied, because no goods or chattels could be found...