Straat v. Rinkle

• Decision Date: 24 June 1884
• Citation: 16 Mo.App. 115
• Parties: JOHN N. STRAAT, Respondent, v. GEORGE RINKLE, JR., Appellant.
• Court: Missouri Court of Appeals

16 Mo.App. 115

JOHN N. STRAAT, Respondent,

v.GEORGE RINKLE, JR., Appellant.

St. Louis Court of Appeals, Missouri.

Jun. 24, 1884.

APPEAL from the St. Louis Circuit Court, LUBKE, J.

Affirmed.

W. B. THOMPSON, for the appellant: The appraisement of homesteads under execution in all collateral proceedings is conclusive.--Thompson on Homesteads, sect. 657; Hunt v. Lauck, 38 Cal. 372; Colby v. Crocker, 17 Kan. 527; Bartholomew v. Hook, 23 Cal. 277; M'Laughlin v. Hart, 46 Cal. 639; Brown v. Cozard, 68 Ill. 180; Barney v. Leeds, 54 N. H. 142, 128; Casebolt v. Donaldson, 67 Mo. 308. The acts of the sheriff under the execution were without authority of law, and the violation of the statute.-- Sects. 2690, 2691, Rev. Stats.; Deveraux v. Fairbank, 50 Vt. 700; Lamb v. Mason, 50 Vt. 345; Skouten v. Woods, 57 Mo. 380. And hence the motion to quash the execution should have been sustained.-- Bain v. Chrisman, 27 Mo. 293; Parker v. Waugh, 34 Mo. 340; Bruce v. Vogel, 38 Mo. 100; Parker v. Railroad Co., 44 Mo. 415; Gale, Admr. of Maupin, v. Michie, 47 Mo. 326.

JOHN N. STRAAT, pro se.

THOMPSON, J., delivered the opinion of the court.

This appeal is prosecuted from an order of court overruling the defendant's motion to quash an execution sued out against the defendant by the plaintiff and levied upon real estate of the defendant. The grounds of the motion are an alleged erroneous and void appraisement under the statute relating to homesteads. It is claimed that the defendant claimed a homestead in the land levied upon; that appraisers were appointed by the sheriff who made an erroneous valuation, leaving out of consideration two mortgages, and found that the improvements and ground were worth more than the amount allowed as the homestead by the statute, and that the building was not susceptible of the division. The sheriff, on the making of this appraisement, suspended action under the levy, and, on the 15th of September, 1883, before the return of the execution, the plaintiff filed a petition under section 2698 of the Revised Statutes praying for an order of sale of the premises and for an apportionment of the proceeds of such sale between the parties entitled to the same. On the 1st of October, 1883, the sheriff returned the execution, together with the report of the appraisers as follows: “I did not advertise and sell the real estate levied on under this execution before the return day thereof, for the reason that George Rinkle, junior, the defendant therein, claimed a homestead in the premises as No. 1 herein of said levy as above described in the return on said execution, which claim of said defendant necessitated the appointment of commissioners to appraise and set out such homestead; that such commissioners were duly appointed and duly qualified and made report that the premises in which said defendant claimed a homestead were not susceptible of the division, for which reason they could not set out such homestead. The action required to be taken by either party under section 2698, chapter 9, of ‘Homesteads,’ Revised Statutes 1879, in cases where homesteads are claimed, and commissioners report the premises not susceptible of division has not been reported to me up to this date, October 1st, 1883, for which reason I retain this execution.” On the 11th of October, 1883, the plaintiff filed an amended petition under section 2698 of the Revised Statutes praying for the same relief as in his original petition. On the 15th of November, 1883, the defendant filed an...