Security State Bank v. Dent County

• Decision Date: 06 March 1940
• Docket Number: 36330
• Parties: Security State Bank, a Banking Corporation, Plaintiff-Appellant, v. County of Dent, Defendant-Respondent
• Court: Missouri Supreme Court

137 S.W.2d 960

345 Mo. 1050

Security State Bank, a Banking Corporation, Plaintiff-Appellant, v. County of Dent, Defendant-Respondent

No. 36330

Supreme Court of Missouri

March 6, 1940

Appeal from Dent Circuit Court; Hon. W. E. Barton, Judge.

Affirmed.

Geo F. Addison for plaintiff-appellant.

(1) The motion to quash the levy should have been overruled, because no showing was made that the property levied upon was exempt from execution under Section 1161, Revised Statutes 1929. Catron v. Lafayette Co., 28 S.W. 331; Sec. 1161, R S. 1929. (2) The motion to quash the levy should have been overruled, because the lot mentioned in evidence is not used for any governmental purpose of the defendant, and the sale thereof would not interfere with any governmental function of the defendant. Edina to Use of Pioneer Trust Co. v School Dist., 267 S.W. 112; Clinton to Use of Thornton v. Henry County, 22 S.W. 494.

B.G. Dilworth and E.W. Bennett for respondent.

(1) The property levied upon is exempt from execution under Section 1161, Revised Statutes 1929. Catron v. Lafayette County, 28 S.W. 331. (2) Property owned by a county and used for any county governmental business is not subject to levy under a general execution on a judgment against said county. 23 C. J. 355 p. 105; Board of Education v. Tiedeman, 69 Mo. 306; 17 R. C. L. 145, sec. 43; Edina v. School District, 267 S.W. 112; Snower v. Hope Drain. Dist., 2 F.Supp. 933; Allen v. School District, 23 Mo. 418. (3) Mandamus is the proper and legal remedy for the collection of a judgment secured against a county. State ex rel. Hufft v. Knight, 121 S.W.2d 764; Edina v. School District, 267 S.W. 115. (4) The hearing on the motion to quash the levy being one before the court, it was not error for the court to allow defendant to present evidence of purpose for which lot in question was purchased. Hellman v. Brick, 55 Mo.App. 168; Moffit v. Hereford, 132 Mo. 513, 23 S.W. 252.

Dalton, C. Hyde and Bradley, CC., concur.

OPINION

DALTON

On November 26, 1937, plaintiff obtained a final judgment for $ 6101.73 against defendant in the Circuit Court of Dent County on warrants and jury script. Thereafter plaintiff caused a general execution to be issued and a levy to be made on real estate of the defendant. Motion to quash the levy was duly filed, notice given, evidence heard, the motion sustained and the levy quashed. After motion for new trial was filed and overruled plaintiff appealed.

The motion to quash the levy alleged that the said real estate was purchased by Dent County with public funds for a public purpose, to-wit, to be used for erecting and maintaining a jail thereon; that said real estate had been and was being used for public purposes; that the property was near the court house and used in connection therewith for storing fire wood, lumber, tools, bridge materials and road machinery; and that the property was not subject to levy under execution on the judgment against the county.

Defendant alone offered testimony in the hearing on the motion. It tended to show that the said real estate, levied upon by the sheriff, was a vacant lot across the street north from the court house square in the City of Salem, Missouri; that about 1921 said real estate was purchased by the county court with public funds of said county and the deed was made to Dent County; that since the purchase of said lot it had been used for a public hitch rack and for the storing of cord wood for use as fuel in the county offices in the court house; that at various times the lot had been used as a storage place for lumber, bridge materials, road tools and machinery owned by the county; that objection was made to hitch racks about the public square and after the purchase of said lot the county court had public hitch racks, a water fountain and a concrete watering trough built on the lot; and that the lot was the only public place provided by the county for hitching purposes.

Over plaintiff's objection that it was not the best evidence, defendant was permitted to prove by a witness, who was a member of the county court at the time of the purchase, that "the main idea" of the county court in purchasing the lot was to provide a place upon which to build a county jail.

Appellant assigns error as follows: (1) that there was no showing that the property levied on was exempt from execution; (2) that the lot was not used for any governmental purpose by defendant and the sale thereof would not interfere with any governmental function of defendant; and (3) that it was error to admit evidence of the purpose for which the lot was purchased, because it had not been used for such purpose. In argument appellant further insists that the evidence as to purpose was not the best evidence, and that no record showing the purpose for which the property was bought was introduced in evidence.

The hearing on the motion to quash the levy was purely a proceeding at law. Issues of fact and law were presented to the trial court for decision. No declarations of law were asked or given. The finding and judgment of the court, if based on substantial evidence, is conclusive. [Southern Coal Co. v. Shepard, 223 Mo.App. 112, 9 S.W.2d 257.]

Missouri authorities touching upon the particular matter under consideration are very limited. The Constitution of Missouri recognizes the several counties of the State "as legal subdivisions of the State." [Art. 9, Sec. 1, Constitution of Missouri, 15 Mo. Stat. Ann. 682.] Provision is made by law for the commencement of suits against counties in the circuit court of the particular county, and for the prosecution of such suits "to final judgment and execution." [Sec. 12108, R. S. 1929, 9 Mo. Stat. Ann. 6425.] An execution may, therefore, properly issue on a judgment against a county. [Catron v. Lafayette County, 125 Mo. 67, 28 S.W. 331.] Generally, in the absence of a statute, no execution lies against the property of a county. [7 R. C. L. 967, sec. 41; Maricopa County v. Hodgins (Ariz.), 50 P. 15, 101 A. L. R. 793, 799.]

Certain property of a county is, by statute, expressly exempt from attachment and execution, to-wit, "all courthouses, jails, clerks' offices and other buildings owned by any county or municipality, and the lots on which they stand, and all burial grounds." [Sec. 1161, R. S. 1929, 2 Mo. Stat. Ann. 1424.] It does not necessarily follow, however, that all property not expressly exempt from attachment and execution by said statute is subject to levy and sale on execution under a judgment against a county. The courts of this State have long recognized the general rule that "property owned by a county or other municipal corporation, and used for public purposes cannot be sold on execution. It is against public policy to permit such property to be sold, for the effect of a sale would be the destruction of the means provided by law for carrying on the government." [The City of Clinton ex rel. Thornton v. Henry County, 115 Mo. 557, 568, 22 S.W. 494 (citing authorities); State ex rel. Kansas City v. School Dist. of Kansas City, 333 Mo. 288, 297, 62 S.W.2d 813, 816.] This general rule is recognized independently of the particular exemption statute.

Swamp land donated to the State of Missouri and by the State transferred to the several counties by an act which provided that "the net proceeds of sales" should "become a part of the public school fund of the county" was held not subject to execution "and entirely exempt from any liability for ordinary county indebtedness." [State ex rel. Robbins v. County of New Madrid, 51 Mo. 82.] In the case of Carton v. Lafayette County, supra, it was said that if it had appeared from the record of the hearing on a motion to quash an execution that the property levied on was the public poor house and farm, such fact "would have afforded good ground for quashing the levy."

Where a judgment had been obtained against a board of education, and an attempt was made to enforce it by execution against property held by it for public school purposes, this court, in sustaining an injunction to prevent the sale of the property, said: "As the board . . . is authorized to levy taxes, it would seem that the appropriate method of procedure, in such cases, would be by mandamus to compel the levy of a sufficient tax to pay the indebtedness. . . . Such a course would certainly avoid all difficulty, and oftentimes prevent the sacrifice of valuable property. But however this may be, whatever may be the proper course to pursue, we are confident that it would contravene the evident policy of our laws to permit school property to go to sale under fi. fa., either general or special." [State to use, etc., v. Tiedeman, 69 Mo. 306, 308.] Mandamus is recognized as a proper and legal remedy for the collection of judgments against municipalities having no property subject to execution. [See State ex rel. Hufft v. Knight (Mo. App.), 121 S.W.2d 762; City of Edina to use, etc., v. School District, 305 Mo. 452, 461, 267 S.W. 112, 115.]

In the case of the City of Clinton ex rel. Thornton v. Henry County supra, it was held that special tax bills for paving the streets about the court house square could not be enforced against the property of the county devoted to strictly public uses nor could a general judgment be obtained against the county therefor. In the case of the City of Edina v. School District, supra, 305 Mo. 452, 267 S.W. 112, 115), this court said: "The public schools have been entrenched as a part of the State Government and it is thoroughly established that they are an arm of that government, and perform a public or governmental function. . . . They are purely public corporations, as has always been held of counties in this State, and not liable for torts or damages for...