State v. McElhinney

• Decision Date: 29 June 1934
• Docket Number: No. 23281.,23281.
• Citation: 72 S.W.2d 895
• Parties: STATE ex rel. WRIGHT v. McELHINNEY.
• Court: Missouri Court of Appeals

72 S.W.2d 895

STATE ex rel. WRIGHT v. McELHINNEY.

No. 23281.

St. Louis Court of Appeals. Missouri.

June 29, 1934.

Rehearing Denied July 10, 1934.

"Not to be published in State Reports."

Mandamus proceeding by the State, on the relation of Emma Wright, against Hon. Robert W. McElhinney, Judge of the Circuit Court of St. Louis County, Division No. 4, in which an alternative writ was issued.

Alternative writ made peremptory.

John E. Corvey and Cullen, Fauntleroy & Edwards, all of St. Louis, for relatrix.

Edwin Rosenthal, of St. Louis, for respondent.

BENNICK, Commissioner.

This is a proceeding in mandamus, which is brought at the relation of Emma Wright against Hon. Robert W. McElhinney, one of the judges of the circuit court of St. Louis county, and now presiding in Division No. 4 of said court.

The controversy arises upon matters incidental to an execution sued out in the circuit court upon the transcript of a judgment of a justice's court filed therein.

In the justice's court, on May 16, 1933, judgment for the sum of $160.77 and costs was rendered by default against relatrix in favor of the C. J. Harris Lumber Company in an action which purported to be for the balance due upon an account. Thereafter, on June 2, 1933, the justice's transcript of the judgment was filed for record in the office of the circuit clerk; and in due course an execution was sued out by the judgment creditor thereon, the same being made returnable to the May, 1934, term of court.

Following the issuance of the execution, the sheriff levied upon certain real estate involved in this controversy (and alleged by relatrix to have been reasonably worth from $1,500 to $2,000), and thereafter, on February 13, 1934, proceeded to sell the same at an execution sale to the C. J. Harris Lumber Company, the judgment creditor, for the sum of $200. Such sale was had at the January, 1934, term of court, and, of course, prior to the return term of the execution; and on February 16, 1934 (which was also prior to the return term), the sheriff returned the execution into court as partly satisfied.

On February 23, 1934, relatrix filed her original motion to quash the execution and the return thereon, and to disapprove and set aside the sale. In such motion the sufficiency of the justice's judgment was not questioned, the motion being based, among other things, upon the ground that relatrix, at the time of the filing of the justice's transcript in the circuit court and the sheriff's sale under the execution, as well as at the time of the filing of her said motion, had no title or interest in and to the property levied upon and sold save for her liability on her warranties, title to the property being in one Lenora Krieger.

Apparently the property in question had been in process of litigation in a suit of an undisclosed character brought by relatrix against Edwin Rosenthal (the attorney for the C. J. Harris Lumber Company) and others; and according to the allegations appearing in the body of relatrix' motion, she had, at some time prior to the filing of the transcript in the circuit court, for a valuable consideration, assigned all her right, title, and interest in and to the property to the said Lenora Krieger, agreeing, upon the entry of a decree in favor of relatrix in the suit mentioned, to convey by warranty deed all her title to the property to Lenora Krieger. It was made further to appear that at the time of the filing of the transcript, legal title to the property was vested in one C. J. Estes as trustee for Ida Rosenthal, the wife of Edwin Rosenthal; and that the title so remained until August 25, 1933, when the circuit court of St. Louis county, by its decree, vested the title in relatrix, subject, as she alleged, to the interests of her assignee, Lenora Krieger.

She set up further that upon the entry of the decree in her favor, on August 26, 1933, she had executed a warranty deed to Lenora Krieger in conformity with the terms of said written assignment, said deed being filed for record on February 19, 1934 (which, incidentally, was after the levy upon and sale of the property under the execution); and that notwithstanding the fact that Edwin Rosenthal, as a defendant in said suit, was informed as to all the matters incident to the state of the title to the property, he, as attorney for the judgment creditor in the action out of which this proceeding has arisen, directed the sheriff to levy upon such particular property.

In the further course of her motion, she alleged that she had previously tendered the full amount of the judgment and costs to both the judgment creditor and the sheriff, which tender she renewed by her motion. For other grounds for quashing the execution and setting aside the sale, she set up that the judgment had been fully satisfied by a legal tender of a sufficient sum for such purpose; that the levy and sale constituted an excess levy; that the property was sold to the judgment creditor for a grossly inadequate consideration so as to constitute him a trustee of the same; and that the return of the sheriff on the execution was premature, and so disclosed on its face.

Though such original motion to quash and set aside the sale is not the one directly involved in this proceeding, we mention its contents at some length because of the insistence that it, when read with relatrix' amended motion, discloses a distinct change of theory on her part; and because of the further fact that at the subsequent hearing before respondent, such original, abandoned motion, though not introduced in evidence, was nevertheless considered by the court for the admissions on relatrix' part which it contained.

Following the filing of such motion, the judgment creditor filed its motion to dismiss relatrix' motion to quash, alleging generally that her motion failed to state facts sufficient to warrant the court in granting the relief prayed for therein, and particularly that relatrix' motion disclosed on its face that she then had no right, title, or interest in or to the property sold under the execution, and that she was not a proper party to maintain the motion, having previously transferred by warranty deed all her right, title, and interest in and to the property.

On March 16, 1934, relatrix filed her amended motion to quash the execution and disapprove and set aside the sale thereunder, said motion being the one which she now seeks to have the court compelled to hear.

As grounds for her amended motion, she set up that the statement filed by the C. J. Harris Lumber Company as plaintiff in the justice's court had wholly failed to state a cause of action, and was insufficient to support a judgment in the cause, so that the purported judgment and the execution issued thereon were void; that the judgment was void for the further reason that the justice's docket failed to show the names of the parties...