Wood v. Messerly

• Decision Date: 31 July 1870
• Citation: 46 Mo. 255
• Parties: JOHN D. WOOD, Plaintiff in Error, v. L. F. MESSERLY et al., Defendants in Error.
• Court: Missouri Supreme Court

46 Mo. 255

JOHN D. WOOD, Plaintiff in Error,

v.L. F. MESSERLY et al., Defendants in Error.

Supreme Court of Missouri.

July Term, 1870.

Error to First District Court.

Ewing & Smith, with Burke & Howard, for plaintiff in error.

I. The execution under the above statute continued in force until the March term, 1863, when it became functus officio. If it was then intended to revive or continue the levy in force, it was necessary either to procure from the court a writ of venditioniexponas or to cause the issue of said execution anew under the provisions of the act of March, 1863 (Sess. Acts 1863, p. 20). It was impossible to impart life to the executions beyond the second term of court of issue, unless the two methods provided by law were resorted to. (36 Mo. 115; 2 Tidd's Pr. 1019; Lackey v. Lubke, 36 Mo. 115.)

II. The case relied on in 43 Mo. 322, by defendants in error, ha no application to the case at bar. The execution now under consideration was issued prior to the passage of the law of 1863, and the case in 43 Mo 322 was where an execution was issued under the act of 1863.

Draffen & Muir, and John W. Moore, for defendants in error, relied on Sess. Acts 1863, p. 20, § 2; R. C. 1855, execution act, § 54.

BLISS, Judge, delivered the opinion of the court.

The plaintiff brings ejectment, and derives title by deed from one K. H. Wood, and defendants hold possession as purchasers upon execution against him. The plaintiff seeks to defeat defendants' title through the execution for the reason, as he claims, that it was functus officio at the time of the sale. It appears that it was issued in March, 1862, returnable at the next September term; that the property was duly levied upon and advertised for sale at said September term, but the court adjourned before the day of sale. A sale being thus rendered impossible, “without fault of the officer,” the execution was continued in force by the provisions of section 54, chapter 63, page 748, of the revision of 1855, which provides that where a sale can not be made at the first term in which it is to be made, it shall be continued to the end of the second term; so that, for the purposes of sale, this execution was kept alive until the end of the March term, 1863. But the record shows that no March term was held, and the sale was not actually made until the September term, 1863. This the plaintiff contends was altogether too late; the execution was dead, and, without a venditioni exponas, the sale could not be made, and was a nullity.

The defendants would sustain the sale by the provisions of two different acts. First, they rely upon section 56 of chapter 47, page 541, of the revision of 1855, which provides that no writ, process, etc., shall be deemed discontinued or abated by reason of the failure of any term of court, etc., but that the same shall be continued, etc.; and Judge Scott, in The Bank v. Wells, 12 Mo. 361, seems to give this effect to the act, though it is not quite certain whether the execution is sustained in that case by this act or by another one cited, or by both together.

The other act upon which the defendants in the case at bar rely is that of March 23, 1863, which provides, first, for the revival of dormant executions, and second, “that those now issued, or that may hereafter be issued, and levied upon real estate, if it shall not be sold at the next term from which the execution has been or may be issued, the execution and...