Sibole v. McKinnies

• Decision Date: 14 January 1920
• Docket Number: No. 2589.,2589.
• Parties: SIBOLE et al. v. McKINNIES et al.
• Court: Missouri Court of Appeals

217 S.W. 577

SIBOLE et al. v. McKINNIES et al.

No. 2589.

Springfield Court of Appeals. Missouri.

January 14, 1920.

Appeal from Circuit Court, Stoddard County; W. S. C. Walker, Judge.

Action by Joseph Sibole against W. D. McKinnies. From an order of the circuit court made on motion of George A. Burr, purchaser at sheriff's sale, amending return upon an execution made by a former sheriff, Achilus E. Robertson and another appeal. The appeal which was originally granted to the Supreme Court was transferred to the Springfield Court of Appeals (213 S. W. 795). Order affirmed.

Andrew W. Hunt, of Bloomfield, for appellants.

Henson & Woody, of Poplar Bluff, for respondent.

BRADLEY, J.

This appeal from the Stoddard county circuit court was originally granted to the Supreme Court and by that court transferred to this court. Sibole v. McKinnies et al., 213 S. W. 795.

On April 23, 1908, Joseph Sibole recovered judgment for $1,198 against W. D. McKinnies in the Stoddard county circuit court in an action on account. On April 12, 1911, an execution was issued on this judgment, and on the same day delivered to Oscar McNeil, then sheriff of Stoddard county. On April 22, 1911, McNeil under said execution levied upon and seized as the property of McKinnies all the right, title, interest, and estate of McKinnies in and to the north half of section 10, township 28, range 11, in Stoddard county. The sheriff, as provided by law, advertised said land for sale to satisfy said execution, said sale being set for October 6, 1911. On the last-named date, and during the regular September term of the circuit court, and during its session, the sheriff sold said land to the respondent, George A. Burr, who was the highest and best bidder. On the same day the sheriff made his deed to the said Burr conveying all the right, title, and interest of McKinnies in the land described, and this deed was duly acknowledged in open court. Afterwards, by mesne conveyances, appellants became the owners of whatever title remained in Mc-Kinnies after said execution sale. The sheriff, on the execution under which he sold the land, made the following return:

"Executed the within writ in the county of Stoddard and state of Missouri on the 6th day of October, 1911, by collecting $75 of the amount set forth in this writ, and applying the same to the payment of the costs, and, after said costs being paid, balance paid to plaintiff. Oscar McNeil, Sheriff of Stoddard county, Mo."

On December 4, 1916, respondent, Burr, served notice on Andrew W. Hunt, as attorney for Achilus E. Robertson and Florence B. Robertson, his wife, that on December, 18, 1916, or as soon thereafter as he could be heard, that he would ask for an order requiring Oscar McNeil, ex-sheriff, to amend the return so as to show the facts. On December 18, 1916, respondent, Burr, filed his motion setting up the facts, and asked that the return be amended so as to show the facts. Robertson and his wife appeared at the hearing of this motion and resisted the same. The court sustained the motion, and directed the amendment as prayed for, and Robertson and wife prosecute this appeal.

McNeil as a witness testified that he was the duly elected, qualified, and acting sheriff of Stoddard county from 1908 to 1912; that on April 23, 1908, Joseph Sibole obtained judgment against W. D. McKinnies for $1,198 in the Stoddard county circuit court; that on April 12, 1911, a general execution was issued on this judgment and delivered to him; that on April 22, 1911, by virtue of this execution, he levied upon and seized all the right, title and estate of McKinnies in the land described; that he advertised this land for sale to satisfy said execution and set the sale for October 6, 1911, the same being one of the regular days of the September term of the circuit court, and that during the session of said court he exposed said land for sale at public auction, and that at said sale George A. Burr was the highest and best bidder, and that said land was stricken off and sold to Burr; that on the same day, as sheriff, he executed to Burr a deed conveying all the right, title, and interest of McKinnies in and...