State v. Haney

• Decision Date: 11 April 1955
• Docket Number: No. 44240,No. 2,44240,2
• Citation: 277 S.W.2d 632,55 A.L.R.2d 717
• Parties: STATE of Missouri, Respondent, v. Lillian HANEY, Appellant,
• Court: Missouri Supreme Court

Page 632

277 S.W.2d 632

55 A.L.R.2d 717

STATE of Missouri, Respondent, v. Lillian HANEY, Appellant,

No. 44240.

Supreme Court of Missouri, Division No. 2.

April 11, 1955.

Green & Green, Will H. D. Green, H. D. Green, West Plains, for appellant.

Weldon W. Moore, Houston, for respondent.

ANDERSON, Special Judge by transfer order.

This is an appeal from an order of the Texas County Circuit Court overruling a motion to set aside a judgment of forfeiture of a recognizance, and a motion to quash an execution on said judgment. Jurisdiction of the appeal is in this court for the reason that the state is a party to said cause. See art. V, Section 3, Constitution, V.A.M.S.

The appellant, Lillian Haney, is the mother of Jess Haney who, on April 30, 1952, was charged in the Magistrate Court of Texas County with the crime of grand larceny. Jess Haney was thereafter arrested and, upon being brought before the magistrate, waived preliminary hearing. He was thereupon bound over to the circuit court and his bond set at $4,000. Thereafter, on May 2, 1952, said Jess Haney made bond in said sum--appellant, Lillian Haney, and Phyllis M. Haney, wife of Jess Haney, executing said bond as sureties. Thereafter, on May 9, 1952, an information was filed in the circuit court charging Jess Haney and Ray Wilson with larceny of an automobile, the property of J. C. Richardson. The cause was continued from time to time and, on February 9, 1953, the following entry was made in the judge's docket record: 'Recognizance of defendant, Jess L. Haney, forfeited. Scire Facias ordered. Capias Warrant for apprehension and arrest of Jess L. Haney ordered. Upon apprehension and arrest of Jess L. Haney, his appearance bond fixed at $4000.00 to be approved by Clerk.'

On February 14, 1953, a writ of scire facias was issued which directed the sheriff to summon Lillian Haney and Phyllis M. Haney to appear on May 2, 1953, the first day of the next term of court, and show cause why the judgment of forfeiture should not be made absolute, and why execution should not issue in favor of the state, according to the force, form and effect of said recognizance.

Personal service of the writ was obtained on Lillian Haney and Phyllis M. Haney on March 23, 1953. Thereafter, said cause was continued from time to time, and until October 22, 1953. On that day, according to the transcript, the following entry in said cause was made on the judge's docket record: 'Judgment by default as to Defendant, Principal and Sureties. Fieri Facias Writ ordered as to all.' The evidence in the case shows that the judgment was not entered in the judgment record.

An execution, in the usual form, was issued on November 10, 1953, for the sum of $4,000, the amount of the debt recovered, and $39.85 costs. Said writ was made returnable February 8, 1954. On February 7, 1954, the sheriff made his return, which recited that the writ had been executed by levying on certain parcels of real estate belonging to the parties, that portion belonging to Lillian Haney being described in the return to the writ as follows: 'All that part of the North West Quarter of Section Fourteen (14), Township Twenty-nine (29) North, Range Ten (10) West, lying South and West of Elk Creek, excepting therefrom a strip of the North side of said Tract lying North of what is supposed to be the High Water line.'

Thereafter, two separate motions were filed by appellant, one praying that the forfeiture be set aside, and the other that the execution be quashed. Both motions, after a hearing, were overruled.

In this court, appellant complains that the court erred in overruling her motion to quash the execution. The grounds relied on in said motion to quash were: (1) that there was no valid forfeiture for the reason there was no service on the circuit clerk of the papers affecting the liability of the parties, as contemplated by Supreme Court Rule 32.12, 42 V.A.M.S.; (2) that said levy was void because of the failure of the sheriff to apprise defendant of her statutory exemptions, as provided by Section 513.445 RSMo 1949, V.A.M.S.; (3) that the judgment was void because the amount thereof was not shown; and (4) that the land levied on was defendant's homestead and therefore exempt from execution.

Appellant was a widow, her husband having died September 11, 1947. The land in question was purchased by her in 1951 from her son Jess Haney. At that time Mr. Glover Davis occupied the premises as tenant, and he continued to do so for about one year after appellant's purchase. Thereafter, the premises were leased to Mr. Childers. Mr. Childers' family did not move onto the land, but from time to time during the term of his lease another family occupied the house whose name appellant did not know. At the time of the hearing the farm was rented to a Mr. Bryant, who lived on the premises.

Appellant testified that she purchased this property with the intention of occupying it as her home. Prior to that time, and at times prior to Jess Haney's arrest in April, 1952, appellant resided with her son James F. Haney, on the latter's farm located about one mile from her place. Jess Haney and his wife Phyllis M. Haney, together with their three children, also lived at the James F. Haney farm.

Appellant further testified that she reserved an upstairs room in the farm house located on her land, in which room she has lived from time to time. There are six rooms in the house in question. In the room reserved appellant has, according to her testimony, a bed, desk, trunk, and an oil stove on which to cook meals. She stated that she started living in this room in 1951, and has lived there part of the time since, when not working. She stated that she did not recall the exact date she first moved there, or how long she remained on the premises in 1951. She stated that since 1951 she had lived there at different times, the longest period being four to five weeks. It also appears from appellant's testimony that at the time of the hearing she was living with her son James, and that she had resided there a good part of the time since her purchase of the land in question. Appellant could not recall how much of the time she lived on her place, or how long she lived with her son James, but stated that when out of work she would go back to one place or the other. During the summers of 1951 and 1952 appellant worked in Meeker, Colorado, as a cook on a Dude Ranch. She also worked in Houston and Cabool, Missouri. She did not give the time or duration of her employment at these latter places. She stated, however, that usually when out of work she would return to live at the James Haney place.

Appellant further testified that after her son's disappearance the latter's wife and three children lived with her from time to time. All five occupied the room which she had reserved for her use as a home. Appellant stated she did not know exactly how long her daughter-in-law and children resided there, but did say they had not lived there during the year next prior to the hearing. Appellant further testified:

'Q. And you aren't obligated to support the children of Phyllis Haney, Jess Haney's wife? A. I help her.

'Q. Does she draw any assistance? A. She draws child aid.'

Plaintiff further testified that she claimed the premises in question as her homestead, and that it has always been her intention to return to live at this place.

Appellant contends that the trial court erred in overruling her motion to quash. It is urged in support of this contention that there was no valid judgment upon which to base the issuance of an execution--appellant's theory being that until a judgment is spread upon the judgment record an execution will not lie. There is no merit to the point.

A judgment is operative from the date of its rendition and the failure of the clerk to perform the ministerial duty of formally entering it upon the record cannot delay its operation for any purpose. The right to execution follows immediately upon the rendition of judgment. Fontaine v. Hudson, 93 Mo. 62, 5 S.W. 692; State ex rel. Garvey v. Buckner, 308 Mo. 390, 272 S.W. 940; Pelz v. Bollinger, 180 Mo. 252, 79 S.W. 146; Sharp v. Lumley, 34 Cal. 611; Stevens v. Manson, 87 Me. 436, 32 A. 1002; Cinebar Coal & Coke Co. v. Robinson, 1 Wash.2d 620, 97 P.2d 128; People ex rel. Holbrook v. Petit, 266 Ill. 628, 107 N.E. 830; Epps v. Bowen, 118 N.J.L. 50, 191 A. 110.

Appellant further contends that the judgment is void because it is vague and indefinite, for the reason that the docket entry does not reveal the names of the parties or the amount of recovery. There is no merit to this contention.

It is a well settled rule of law, approved by text writers and this court, that if there is any uncertainty in the judgment as to the party for or against whom it is rendered, it is proper to look to the entire record, including the pleadings and process to ascertain for or against whom the...