Sandrowski v. Sandrowski

• Decision Date: 07 April 1936
• Citation: 93 S.W.2d 81,230 Mo.App. 1056
• Parties: FRANK SANDROWSKI & LENORA SANDROWSKI, HIS WIFE, RESPONDENTS, v. JOSEPH SANDROWSKI AND MARGARET SANDROWSKI, HIS WIFE, APPELLANTS
• Court: Missouri Court of Appeals

93 S.W.2d 81

230 Mo.App. 1056

FRANK SANDROWSKI & LENORA SANDROWSKI, HIS WIFE, RESPONDENTS, v. JOSEPH SANDROWSKI AND MARGARET SANDROWSKI, HIS WIFE, APPELLANTS

Court of Appeals of Missouri, St. Louis

April 7, 1936

Appeal from the St. Louis Circuit Court.--Hon. James F. Green Judge.

REVERSED AND REMANDED.

Reversed and remanded.

Frank B. Grodzki and Thomas I. Krauska for respondents.

Where court ratifies a judicial sale of special commissioner, and in the interlocutory decree required bond of commissioner, to be filed, when directed by the court, failure of Special Commissioner to comply with statute requiring bond, is not ground for vacating the sale, where none of the interested parties were injured. 35 C. J., p. 26, sec. 36; McKee v Logan, 82 Mo. 528; Cunningham v. Schley (Md.), 6 Gill 207; Dawes v. Thomas (Md.), 4 Gill 333; Cooper v. Daugherty, 85 Va. 343; Sommerville v Sommerville, 26 W.Va. 479. Section 1601, Revised Statutes of Missouri, 1929, is not a mandatory statute, one which would render the proceeding illegal and void for the failure of the court to require immediate bond of the commissioner but rather one that is directory in its provisions and not absolutely necessary to the validity of the proceeding, and depending upon the judicial discretion of the court. State ex inf., etc., Lincoln v. Bird, 295 Mo. 344; 59 C. J., pp. 1074 and 1077.

Alfred L. Grattendick, David E. Horn and Elmer L. Moone for appellants.

(1) A special commissioner appointed to make a sale of realty in partition proceedings must, before entering upon the discharge of his duties, file with the clerk of the court his bond, payable to the State, with sureties as may be approved by court, in a sum sufficient to indemnify the parties, conditioned that he will faithfully discharge the duties of his office. Sec. 1601, R. S. Mo. 1929. (2) A special commissioner appointed to make a sale of realty cannot perform any of the duties of his office until he has qualified himself. Phelps et al. v. Jones, 91 Ky. 244, 15 S.W. 668.

HOSTETTER, P. J. Becker and McCullen, JJ., concur.

OPINION

HOSTETTER, P. J.

--This is a partition suit which was begun in the Circuit Court of the City of St. Louis on the 21st day of November, 1933.

The plaintiffs are husband and wife and together own an undivided one-half interest in the real estate described in their petition, which was a lot described by metes and bounds in Block No. 589 of the city of St. Louis, upon which there is a two story brick flat at 1414 North 13th Street.

The defendants are also husband and wife and together own an undivided one-half interest in said real estate.

The petition is in conventional form, and, after averring that the property cannot be divided in kind, asks for the appointment of a special commissioner to conduct the sale.

The cause was heard by the court on the 28th day of March, 1934, and taken under advisement and, on the 6th day of April, 1934, the court entered its interlocutory decree, finding the interests of the parties as set out above and that the property was not susceptible of partition in kind and appointed William A. Woodward, Special Commissioner, to make the sale of the property and report same to the court, and directed "that when directed by the court he shall make and file with the clerk his bond" in the sum of $ 3000 conditioned as required by law with such sureties as might be approved by the court or clerk.

Defendants saved their exceptions to this interlocutory decree and, later, on June 2, 1934, filed separate motions asking that the interlocutory decree, the appointment of the special commissioner and the order of sale be vacated and set aside. On the same day defendants filed a joint motion complaining that plaintiffs had not paid their one-half of necessary expenses incident to the upkeep of the property and had collected and retained more than their one-half of the rentals from the property and asked for an accounting.

The special commissioner, without giving any bond at all, as required by Section 1601, Revised Statutes of Missouri, 1929 (Mo. Stat. Ann., sec. 1601, p. 1754), duly advertised the property for sale and, on May 25, 1934, sold it at public sale to Stanley Cibrowski, he being the highest bidder, for the sum of $ 2050, and filed his report of sale in court on June 11, 1934.

On June 15, 1934, defendant Margaret Sandrowski, filed exceptions to the report of the commissioner and asked that the same be disapproved and, among other grounds, set up that he had not, at the time of the sale, "properly qualified himself as a special commissioner in that he had failed to furnish and have approved a surety bond in pursuance to the statutes of the State of Missouri 1929."

Thereafter, on June 25, 1934, the court overruled all the motions theretofore filed by defendants and approved the report of sale theretofore filed by the special commissioner and allowed him $ 50 for his services, and allowed the plaintiffs' attorney $ 100 for his services and allowed another attorney, who had previously represented defendants, $ 75, to be paid out of their distributive shares from the proceeds of sale.

On June 29, 1934, defendants filed their joint motion for a new trial, which contained twenty-three grounds, one of which reads as follows:

"18. That the said purported sale made by the Special Commissioner is of no force and effect and is void because said Special Commissioner was not qualified to act in that he failed to furnish bond as requiring by the interlocutory decree."

On October 1, 1934, the court sustained paragraphs 1, 2, and 3, of said motion for a new trial, relating to the order to have the $ 75 claimed by defendants' attorney paid to him out of their distributive share in the proceeds of sale and set aside this order of allowance, but overruled the motion as to all other specifications.

Thereupon defendants duly perfected their appeal and bring the cause to this court for review.

The only error assigned in this court is that the trial court erred in approving the report of sale of the special commissioner because he was not qualified to act as such, having failed to give the bond as required of him by Section 1601, Revised Statutes of Missouri, 1929, and by the order of court contained in the interlocutory decree and that because of such failure his sale was void.

Section 1601, Revised Statutes of Missouri, 1929, reads as follows:

"Special Commissioner to Execute and File Bond with Clerk. Every special commissioner, appointed under the provisions of this article, before entering upon the discharge of the duties of his office, shall file with the clerk of the court in which the suit for partition is pending, his bond, payable to the State, with such sureties as may be approved by the court, in a sum sufficient to indemnify the parties, conditioned that he will faithfully discharge the duties of his said office, and account for and pay over, according to the order of the court, to the parties entitled thereto, all such sums of money as may come to his possession as such commissioner."

The following section provides that the special commissioner shall perform the same duties and be governed by the same rules applicable to sheriffs, in like cases. We do not find that said Section 1601 has ever been construed by the Missouri courts.

The solution of the question involved in this appeal depends on whether the provision requiring the special commissioner to make and file his bond before entering upon the discharge of his duties is mandatory or directory merely. If mandatory, the sale is void; if directory, it may be upheld. Some light is thrown on this subject by an opinion of our Supreme Court in State ex rel. Ellis v. Brown, 326 Mo. 627, 33 S.W.2d 104. This case quotes approvingly the text in 25 R. C. L., sec. 14, pp. 766, 767, as follows:

"A mandatory provision is one the omission to follow which renders the proceeding to which it relates illegal and void, while a directory provision is one the observance of which is not necessary to the validity of the proceeding. Directory provisions are not intended by the legislature to be disregarded, but where the consequences of not obeying them in every particular are not prescribed the courts must judicially determine them. There is no universal rule by which directory provisions in a statute may, in all circumstances, be distinguished from those which are mandatory. In the determination of this question, as of every other question of statutory construction, the prime object is to ascertain the legislative intention as disclosed by all the terms and provisions of the act in relation to the subject of legislation and the general object intended to be accomplished. Generally speaking, those provisions which do not relate to...