Trigg v. Ross
| Decision Date | 31 July 1864 |
| Citation | 35 Mo. 165 |
| Parties | WILLIAM H. TRIGG, Defendant in Error, v. F. J. Ross, Plaintiff in Error. |
| Court | Missouri Supreme Court |
Error to Cooper Circuit Court.
Wm. Douglass, for plaintiff in error.
I. The second instruction asked by the plaintiff below, and given, ought to have been refused; because, 1. There was no evidence of any instructions by plaintiff in the execution to the clerk to issue the execution returnable to the March term, 1863, of the court; but, on the contrary, the only evidence of any instructions given by plaintiff to the clerk, were the instructions to alter said execution after it had been issued and placed in the hands of the sheriff.
The clerk had no power to alter the execution after it had been issued and had gone into the sheriff's hands; and the alteration so made rendered the execution void, and the plaintiff, who is also the purchaser at the execution sale, being privy to said alteration, acquired no title to said property.
The clerk had no power or authority to alter the execution after it had gone into the sheriff's hands, nor could the plaintiff in the execution then authorize him to alter it. It had passed beyond their control. (R. C. 1855, p. 1257, § 21.) What, then, was the effect of this unauthorized alteration? The execution was a process of the court; it was a judicial record; such records have always been held inviolable and sacred. The public safety requires that they should not be profaned or tampered with, hence the wise provision of our statute quoted above, and which is only declaratory of what was the common law. If such alterations were permitted, it would lead to endless confusion and mischief, hence they are prohibited; and when done, the courts have held that the process thereby becomes vitiated, null and void. .)
II. The instruction asked by the defendant below should have been given. This is not like the cases where it has been held that the title of a bona fide purchaser at sheriff's sale cannot be declared void in a collateral proceeding. Trigg was not a bona fide purchaser; he knew of the alteration in the execution; he caused it to made; it was his own wrong, and he cannot take advantage of it.
This is an action of ejectment. The plaintiff having a judgment against the defendant, caused an execution thereon to be issued. After the execution had been issued and delivered to the sheriff, the clerk of the court from which it issued, at the instance of the plaintiff, changed the words of the execution so as to make it returnable at a time different from that named in it as originally issued. The sheriff, proceeding to act under the execution, sold a lot, which was bought by ...
To continue reading
Request your trial
-
Henman v. Westheimer
... ... writ or summons issued by the justice. Even the justice who ... issued the writ could not make such a change after it left ... his hands. Trigg v. Ross, 35 Mo. 165; 1 Freeman on ... Executions (3 Ed.), sec. 47; Cope v. Snider, 99 ... Mo.App. 498. (2) Where a mode of acquiring jurisdiction ... ...
-
Curd v. Lackland
...is the rule in equity. (Gott v. Powell, 41 Mo. 416; Hann. & St. Jo. R.R. Co. v. Brown, 43 Mo. 294; Young v. Bircher, 31 Mo. 136; Trigg v. Ross, 35 Mo. 165, 168; Weston v. Clark, 37 Mo. 568; Dickerman v. Burgess, 20 Ill. 266, 279; 11 Ill. 523-4; Woodruff v. Hoard, 9 Ind. 186; Pettingill v. M......
-
Cullen v. Collison
... ... execution issued thereon if no other reason appeared. No ... party can take advantage of his own wrong. Trigg v ... Ross, 35 Mo. 168; Medlin v. Platt Co., 8 Mo ... 239; Lubbering v. Kohlbrecher, 22 Mo. 598; Lee ... v. Harman, 84 Mo.App. 161; Bresnehen v ... ...
-
Holstead v. Parker
... ... C.) 415; Wood v. Colvin, 2 Hill (N. Y.) 566; Johnson v. Caldwell, 1 Conn. 622; Neilson v. Neilson, 5 Barb. 575; Myers v. Cochran, 29 Ind. 256; Trigg v. Ross, 35 Mo. 165 ... "It is not our purpose to express any opinion on this proposition, as in this case it is not necessary ... ...