Salisbury v. Salisbury

• Decision Date: 09 April 1918
• Docket Number: No. 19103.,19103.
• Citation: 274 Mo. 180,202 S.W. 529
• Parties: SALISBURY v. SALISBURY et al.
• Court: Missouri Supreme Court

202 S.W. 529

274 Mo. 180

SALISBURY v. SALISBURY et al.

No. 19103.

Supreme Court of Missouri, Division No. 2.

April 9, 1918.

Appeal from St. Louis Circuit Court; Kent K. Koerner, Judge.

Suit by Carolina Salisbury against Francis O. Salisbury and others. Decree dismissing the bill, and plaintiff appeals. Decree sustained.

This is a suit to enjoin the sale of land under execution. The bill was dismissed, and plaintiff has appealed.

Plaintiff and Francis O. Salisbury, one of the defendants, are husband and wife, and are residents of St. Louis. The other two defendants are residents of Dent county, of which said Gibbs is sheriff. Plaintiff furnished her husband with money to buy for her some Dent county land. He did so, but fraudulently took the title in his own name. He got in debt to defendant Duggan, and she recovered judgment for it against him in the circuit court of the city of St. Louis in April, 1914. Execution was issued on that judgment directed to defendant Gibbs as sheriff of Dent county and was levied on the land. Plaintiff then sued her husband in Dent county to divest him of title to the land and to vest it in herself. The husband entered his voluntary appearance therein, but filed no answer. The decree was in accordance with the petition.

Thereupon plaintiff brought this suit in the circuit court of St. Louis to enjoin the sale of the land under that execution. The petition charges that defendants Duggan and Francis O. Salisbury are acting together in the attempt to sell said land under said execution.

The answer of defendant Duggan contained the following:

"First. Questions the jurisdiction of the court over the person of Mary E. Duggan in this cause for the reason that she, the said Mary E. Duggan, is a resident of Dent county, Mo., and was a resident of said county at the date of the filing of plaintiff's bill, and that the plaintiff is a resident of the city of St. Louis, Mo., and that G. W. Gibbs, the sheriff of Dent county, Mo., is a resident of Dent county, and that the plaintiff fraudulently and unlawfully joined her husband, Francis O. Salisbury, as a party defendant in this action for the sole and only purpose of seeking to acquire jurisdiction over the person of this defendant, Mary E. Duggan, and her codefendant, G. V. Gibbs, sheriff of Dent county; and that there is no joint interest or liability existing between the said defendants, Francis O. Salisbury and Mary E. Duggan, and the said G. W. Gibbs, sheriff of Dent county, and this court is without jurisdiction to hear and determine this case as an independent action of injunction.

"Further answering, the defendant Mary E. Duggan avers that this court has no jurisdiction over the subject-matter of this action, in this, to wit: That this court had no right to issue an injunction restraining the proceedings of division No. 5 of the circuit court of St. Louis City, and to restrain the sale of the lands described in plaintiff's petition under an execution issued by division No. 5 of this court, and that this court had no control over the proceedings and execution issued by Division No. 5."

The answer of defendant Francis O. Salisbury was as follows:

"Now at this day comes Francis O. Salisbury, one of the defendants named in the above-entitled cause, and for his separate answer to the plaintiff's petition heretofore filed in said cause says that he admits the truth of every allegation, in said...