Webster v. Blount
| Decision Date | 28 February 1867 |
| Citation | 39 Mo. 500 |
| Parties | BENJ. F. WEBSTER, ELISTON MARSH et als., Appellants, v. HENRY BLOUNT et als., Respondents. |
| Court | Missouri Supreme Court |
Appeal from Audrian Circuit Court.
Ensworth, for appellants.
I. The court below committed error by receiving parol evidence to show the authority of W. R. Roberts to change the return on the attachment--R. C. 1855, p. 1257. The acts of a court can only be proven by its records--8 Mo. 535; 12 Mo. 598; 13 Mo. 511; 1 Pet. 340. The courts by order may permit an officer to amend his return, but not in cases to the prejudice of parties to the suit--9 Mo. 28. But it may be done in furtherance of justice--8 Mo. 334; 23 Mo. 223; 27 Mo. 227. Much less should the officers be permitted to amend the injury of persons who were not parties to the record. I conceive that persons who were not parties to the record are not bound by the record, and that this change of the levy on to property that had been conveyed to the plaintiff is void as to them.
II. The court erred in permitting the respondent to introduce parol evidence to show the action of the court--8 Mo. 235; 12 Mo. 598; 13 Mo. 511.
III. The return is insufficient, the description of the property levied on and set out in the return being too vague and uncertain to identify any subject matter set out therein.
H. M. & A. H. Vories, for respondents.
I. The description of the land in the sheriff's deed was and is sufficiently certain to identify the land; and even if this were not the case, the evidence introduced left no doubt as to the land intended, and which was levied upon and sold. The 110 acres in section 26 is the only land involved in this suit.
As to the right of the officer to amend his return, see Corby, assignee, & c., v. Burnes, 36 Mo. 194; Blaisdell v. St. Bt. Wm. Pope, 19 Mo. 157, and authorities referred to; Gywn, on Sher. 471, and authorities cited, And as to the description of land, see Rector v. North, 8 Mo. 448; Landes v. Perkins, 12 Mo. 238; Lisa v. Lindell, 21 Mo. 127.
The assignment of errors and the exceptions saved on the record present two points to be determined here: first, the action of the court in permitting parol evidence to be introduced in regard to the amendment of the sheriff's return; and secondly, the objection taken to the insufficiency of the sheriff's deed for uncertainty of description. Courts have always exercised the power of permitting amendments to be made to promote the ends of justice and make the return conform to the truth--Blaisdell v. St. Bt. Wm. Pope, 19 Mo. 157; Corby v. Burnes et al., 36 Mo. 194. And where the amendment is made at a term subsequent to the return term, it will relate back to the proper return day--Malone v. Samuel, 3 A. K. Marsh, 350. We do not concede the fact in this case that the plaintiffs had the right to impeach the return, for the judgment return and execution under which the defendants purchased appear regular and in accordance with law, and there was nothing to apprise them of any defect or put them on their guard. But this question has not been raised by the counsel on either side, and we will not further consider it.
The plaintiffs, at the hearing of the cause, introduced the clerk of the Circuit Court as a witness to prove that the sheriff, in his original return to the attachment suit under which defendants purchased the land, described the land as lying in section six. The defendants were then permitted by the court to show that the sheriff afterwards appeared in open court, and with the sanction of the court amended his return by inserting the word “twenty” before ““six,” so as to locate the land levied on in section twenty-six. To this the plaintiffs objected. The permission of the court to the...
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Smoot v. Judd
...Mo., loc. cit. 297, 73 S. W. 576, and cases cited. When the return was so amended, it related back to the time of the service. Webster v. Blount, 39 Mo. 500; Kitchen v. Reinsky, 42 Mo., loc. cit. 436. Thereafter the only return in the original case was service by copy, and not personal. But......
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Smoot v. Judd
...174 Mo. l. c. 289, 73 S.W. 576, and cases cited.] When the return was so amended it related back to the time of the service. [Webster v. Blount, 39 Mo. 500; v. Reinsky, 42 Mo. l. c. 427.] Thereafter the only return in the original case was service by copy and not personal. But whether regar......
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Hammond v. Johnston
...from the cases, that no rule has been adopted on the subject." It is, then, held that the case was not distinguishable from that of Webster v. Blount, supra. Again, Adkins v. Moran, 67 Mo. 100, the defendant relied upon a sheriff's deed, which described the land as "seventy acres P. N. of N......
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City of Jackson, to Use of Cape County Sav. Bank v. Houck
...land was known by the description given." See also the cases of Hart v. Rector, 7 Mo. 531; Bates v. Bank of Missouri, 15 Mo. 309; Webster v. Blount, 39 Mo. 500; Shewalter Pirner, 55 Mo. 218. The trial court erred, therefore, in holding, under the evidence, that the tax bill was void for wan......