St. Louis v. Miller, 32893.

• Decision Date: 07 May 1935
• Docket Number: No. 32893.,32893.
• Parties: CITY OF ST. LOUIS, Plaintiff, v. J.F. MILLER ET AL., Defendants, MISSOURI STATE LIFE INSURANCE COMPANY, a Corporation, Respondent, ANNE M. EVANS, Appellant.
• Court: Missouri Supreme Court

82 S.W.2d 579

CITY OF ST. LOUIS, Plaintiff, v. J.F. MILLER ET AL., Defendants, MISSOURI STATE LIFE INSURANCE COMPANY, a Corporation, Respondent, ANNE M. EVANS, Appellant.

No. 32893.

Supreme Court of Missouri.

Division Two, May 7, 1935.^*

Appeal from Circuit Court of City of St. Louis. — Hon. John W. Calhoun, Judge.

AFFIRMED.

Anne M. Evans for appellant; Henry Elias Haas of counsel.

(1) The right to redeem property sold under an order or decree of court is purely statutory and without such a statute the right does not exist. There is no statute in Missouri which authorized the trial court to do, on motion, what was done in this particular case. State ex rel. Stogsdell v. Evans, 53 Mo. App. 667; Brasch v. Mumey, 99 Ark. 324; 35 C.J., p. 67, sec. 103, p. 69, sec. 108; 27 Amer. & Eng. Ency. of Law (2 Ed.), p. 849; 25 Amer. & Eng. Ency. of Law (2 Ed.), p. 847; Zeman v. Ward, 260 Ill. 96; Lynch v. Burt, 132 Fed. 419; Rorer on Judicial Sales (2 Ed.), sec. 1148; 4 Cooley on Taxation (4 Ed.), sec. 1559. (a) The only statutes in Missouri which can be said to touch upon the matter contemplate a separate suit and not a summary proceeding by motion. R.S. 1929, secs. 6223, 9966, 9967. (2) The controversy between the Missouri State Life Insurance Company and Anne M. Evans was a separate and independent controversy and had no connection whatever with the object sought to be attained in the original suit nor any supposed defense therein. It was error, therefore, for the trial court to entertain in the original suit the intervening motion of the Missouri State Life Insurance Company, and the motion to dismiss the proceedings filed by the appellant Anne M. Evans should have been sustained. 21 C.J. 343, sec. 341; Monticello Building Corp. v. Monticello Inv. Co., 52 S.W. (2d) 545; Langford v. Fanning, 7 S.W. (2d) 726; Nelson v. Nelson, 258 S.W. 1007; Mountain Grove Creamery Co. v. Willow Springs Creamery Co., 202 S.W. 1054; State ex rel. Carter v. Clymer, 81 Mo. 125; Hoover v. Ry. Co., 115 Mo. 81; Gay v. Orcutt, 169 Mo. 407; Oxley Stave Co. v. Butler County, 121 Mo. 614; 17 Amer. & Eng. Ency. of Law (2 Ed.) 183. (3) There can be but one final judgment in a civil suit. The final judgment in the condemnation proceedings was made and entered on the 7th day of March, 1928, and was never set aside or vacated. The entry, therefore, of a second final judgment in the same suit, though between different parties, was clearly erroneous and void, and the error could not be waived. R.S. 1929, sec. 1077; 33 C.J. 1193, sec. 123; 15 Ency. Plead. & Prac., 209, 211; 13 Amer. & Eng. Ency. of Law (2 Ed.), pp. 31, 32; Heffernan v. Ragsdale, 199 Mo. 375; Warren v. Manwarring, 173 Mo. 21; Baker v. St. Louis, 189 Mo. 375; Estes v. Fry, 166 Mo. 70; Russell v. Railroad Co., 154 Mo. 428; Seay v. Sanders, 88 Mo. App. 478; Spalding v. Citizen's Bank, 78 Mo. App. 374; Sater v. Hunt, 75 Mo. App. 468; Beshears v. Vandalia Banking Assn., 73 Mo. App. 293; Caulfield v. Farish, 24 Mo. App. 110; Black on Judgments (2 Ed.), sec. 24; Thompson v. Thompson, 73 Wis. 87. (4) The motion filed by the Missouri State Life Insurance Company to set aside the sale under execution was a collateral attack on the judgment in the condemnation suit and it is only where the judgment is wholly void that it is subject to collateral attack. Mere inadequacy of price and the fact that Matthew A. Carroll died in August, 1922, were circumstances which did not make the judgment void, but, at most, only voidable in a direct proceeding. 1 A.L.R. 1428, 1431, 1443; 23 C.J., pp. 670, 676; 35 C.J. 112, sec. 196; 25 Amer. & Eng. Ency. of Law (2 Ed.) 806; Cabell v. Grubbs, 49 Mo. 353; Howard v. Stevenson, 11 Mo. App. 412; Bridge & Transit Co. v. Blaser, 318 Mo. 373, 300 S.W. 778; Weil v. Richardson, 224 Mo. App. 999, 24 S.W. (2d) 175; Lovitt v. Russell, 138 Mo. 482; Caffery v. Mining Co., 95 Mo. App. 174; Kellog v. Moore, 271 Mo. 192, 196 S.W. 15; Gunby v. Cooper, 177 Mo. App. 354, 164 S.W. 152; Whitman v. Taylor, 60 Mo. 127; Rinehart v. Long, 95 Mo. 396; Knoop v. Kelsey, 121 Mo. 642; Burke v. City of Kansas, 118 Mo. 309; Morey v. Brown, 305 Ill. 288; State ex rel. v. Riley, 219-Mo. 667. (5) Appellant was deprived of her property without due process of law as guaranteed by the Constitution. Due process of law means a summons issuing out of a court and must be attested by the clerk of the court out of which it issues and be served by an officer of the court. A private notice, served in a private way, is not due process of law. Mo. Const., Art. II, Sec. 30; Mo. Const., Art. VI, Sec. 38; R.S. 1929, secs. 753, 11518; 6 Words & Phrases, First Series, p. 5646; 3 Words & Phrases, First Series, p. 2244; Hubbard v. Montross Metal Shingle Co., 79 N.J.L. 210; Healey v. Blake Mfg. Co., 180 Mass. 273; Horton v. Railroad Co., 26 Mo. App. 355; Williams v. Monroe, 125 Mo. 585; 20 Ency. Plead. & Prac. 1073, 1083; 50 C.J. 445; State ex rel. v. Rutledge, 56 S.W. (2d) 37; Cornet v. St. Louis County, 240 S.W. 107. (a) Appellant did not waive her rights by participating in the proceedings in the court below since this was done by order of the court and was not voluntary. Moreover, jurisdiction of the person may be conferred by consent, but jurisdiction of the subject matter must come from the law. Abernathy v. Moore, 83 Mo. 69; State ex rel. Kelley v. Trimble, 297 Mo. 124; Harkness v. Hyde, 98 U.S. 479; Thompson v. Thompson, 84 Wis. 87; R.S. 1929, sec. 724; 17 Amer. & Eng. Ency. of Law (2 Ed.), 1062; State ex rel. Deems v. Holtcamp, 245 Mo. 655.

James P. Aylward, Warren Rogers and Williams, Nelson & English for R. Emmet O'Malley, Superintendent of Insurance.

(1) The Circuit Court of the City of St. Louis has power, at the return term, to set aside a sale made under an execution issued by that court. State ex rel. Ford v. Hogan, 27 S.W. (2d) 21; State ex rel. Marrs v. Wessell, 237 Mo. 593. (2) Even though notice of sale technically complies with the law, where the notice of sale to one who reads it does not give adequate notice and the property sells for a grossly inadequate price, the court should set aside such execution sale, it being the duty of the court to see that its process is not abused or perverted to the oppression of individuals. Hoevel v. Hoevel, 199 S.W. 403; State ex rel. Marrs v. Wessell, 141 S.W. 887, 237 Mo. 593. (3) The Superintendent of the Insurance Department has the right to appear for and defend this action on behalf of the Missouri State Life Insurance Company, R.S. 1929, sec. 5948.

TIPTON, P.J.

This is an appeal from an order of the Circuit Court of the City of St. Louis, setting aside the sheriff's sale of two parcels of real estate sold under special executions.

On March 7, 1928, a final judgment was entered in a condemnation proceeding for the widening of Easton Avenue, a public highway of that city. The judgment recited as to each of the two lots in question that the city recover fifty dollars ($50), and that sum constitutes a first and special lien upon the property described therein against Matthew A. Carroll, or the owner or owners thereof. It was ordered and adjudged that the several judgments for benefits be declared specific and prior liens against the lots respectively for ten years; and that a special execution in favor of the city of St. Louis be issued on the request of the comptroller of that city.

On August 30, 1922, prior to the rendition of the judgment, Matthew A. Carroll died and by his will left this property to his wife. By mesne conveyances from his wife, this property was acquired by Ray Berger, who on June 24, 1926, executed his deed of trust to John A. Love, as trustee, securing a note in the sum of thirty-six thousand ($36,000) dollars, which note was subsequently acquired by the respondent, Missouri State Life Insurance Company. On October 11, 1932, this was foreclosed and the trustee's deed was executed to the respondent.

On June 14, 1932, the appellant purchased at an execution sale all right, title and interest of Eugene D. Dean and Belle D. Dean in real estate. At that time, this property stood in the name of John McHale Dean, but appellant claimed that he was a fraudulent grantee of Eugene D. Dean and Belle D. Dean.

On July 5, 1932, a motion for execution on the condemnation judgment was filed and on July 20, 1932, the clerk of that court issued two executions which were returnable to the September Term of that court, beginning September 12, 1932.

These executions were returned into court on October 31, 1932, at the September Term of that court, showing that the sheriff had seized all right, title, claim, interest, estate and property of the defendant, Matthew A. Carroll and that the appellant purchased these lots for the sum of two hundred and sixty-five dollars ($265).

At the same term of the court and on November 5, 1932, the respondent, the Missouri State Life Insurance Company, filed a motion to set aside the execution sale, alleging that it was the practice and custom of the city of St. Louis not to issue execution on judgment in condemnation cases against property until it had notified all parties interested and that the respondent relied upon such practice and was misled thereby and that it knew nothing about the sale of this property under the executions until several weeks after it had taken place. The motion, also, stated that the respondent had bought the property at this sale at a price that was so far out of proportion to its real value as to amount to a confiscation thereof and that it constitutes a fraud upon the rights of the respondent.

At the hearing on the motion on November 19, 1932, still at the return term of the execution, the court set aside the sale, and directed the respondent to deposit in court the amount of appellant's bid, with interest and costs. The testimony as to the value of the property was that it was worth at that time from twenty-one thousand dollars ($21,000) to twenty-four thousand five hundred dollars...