York v. Roberts

• Citation: 8 Mo.App. 140
• Parties: FRANK B. YORK, Appellant, v. WILLIAM S. ROBERTS ET AL., Respondents.
• Decision Date: 09 December 1879
• Court: Court of Appeal of Missouri (US)

8 Mo.App. 140

FRANK B. YORK, Appellant,

v.WILLIAM S. ROBERTS ET AL., Respondents.

St. Louis Court of Appeals, Missouri.

Dec. 9, 1879.

1. Where title to property purchased under an execution sale under a justice's judgment is attacked, it is for the purchaser to show that the justice had jurisdiction.

2. Where it appears that judgment was rendered by a justice in one proceeding against the drawer and the acceptor of a bill of exchange for $300, interest, and damages, want of jurisdiction affirmatively appears.

APPEAL from the St. Louis Circuit Court.

Reversed and remanded.

MARSHALL & BARCLAY, for the appellant: No title passes under an execution sale where the judgment under which the execution issued is in excess of the justice's jurisdiction.-- McClure v. Logan, 59 Mo. 234; Meis v. Geyer, 4 Mo. App. 404.

SMITH P. GALT, for the respondents.

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

The plaintiff, by virtue of a statutory assignment of the property of the Manufacturers' Union Company, claims in replevin certain personal property, to which the defendants assert title by virtue of a constable's sale under a judgment of a justice of the peace rendered in the case of Broadway Savings Bank v. Manufacturers' Union Company et al. On the trial below, the plaintiff proved that the property had belonged to his assignor, and that as assignee he took charge of it among the assets of the company. Upon cross-examination of plaintiff's witnesses, the defendant put in evidence, without objection, an original accepted bill, which, it appears, constituted the cause of action in the suit under which defendants claimed title. During the trial, the original summons, constable's return, the execution, return on execution, and also the notice of protest of the bill, were put in evidence, by way of laying the foundation for the title of defendants, who purchased at the constable' ssale. The court below instructed to the effect that if the execution offered in evidence by defendants came into the constable's hands before the fourteenth day of May, 1877, and the constable levied upon, and the defendant Roberts bought the property at the sale, and the property was delivered to him before the bringing of this suit, the jury should find for the defendant. The jury so found.

As the defendants claim title under an execution sale made by virtue of a judgment rendered by a justice of the peace, it devolved upon them to show that the justice had jurisdiction. No objection was made...