Young v. Bircher

• Decision Date: 31 October 1860
• Citation: 31 Mo. 136
• Parties: YOUNG, Plaintiff in Error, v. BIRCHER, Defendant in Error.
• Court: Missouri Supreme Court

31 Mo. 136

YOUNG, Plaintiff in Error,

v.BIRCHER, Defendant in Error.

Supreme Court of Missouri.

October Term, 1860.

1. A party to a judgment, who procures the issuance and levy of an execution thereunder, derives no protection from such judgment in the matter of such levy, where the judgment is afterwards vacated for irregularity.

2. Where courts have a discretion in the setting aside of judgments, they may impose such conditions and restrictions as the circumstances will warrant.

Error to St. Louis Land Court.

The plaintiff seeks in this action to recover damages for an alleged wrongful and malicious expulsion of plaintiff by defendant from certain premises. The plaintiff sets forth that on the 4th of February, 1852, he leased certain premises from the defendant for a term of four years; that on the 24th of February, 1855, the defendant unlawfully and maliciously ejected and expelled plaintiff from said premises. It appears from the evidence adduced that the defendant Bircher instituted proceedings before a justice of the peace against the plaintiff, under the landlord and tenant act of 1845; that judgment was rendered against said Young for the possession of the premises; that an appeal was allowed to the St. Louis land court on the 12th of October, 1854; that on such appeal, the justice made return to the land court on the 16th of December, 1854, during the October term of the said court. On the 4th of January, 1855, Bircher moved the court to dismiss the appeal and affirm the judgment. This motion was sustained. Execution was issued on this judgment and executed. The expulsion of plaintiff from the premises under this execution constitutes the trespass. On the 30th of June, 1855, at the March term, Young moved the court to set aside the dismissal of the appeal and the judgment of affirmance, and to reinstate the cause. The ground of this motion was that said appeal was not returnable until the March term, 1855, and that the motion made by Bircher was premature and illegal; that the court was not possessed of said appeal so as to take jurisdiction of the same until the March term, 1855, and its action thereon was therefore illegal. This motion was sustained, and the appeal reinstated. Afterwards in November, said appeal came on to be heard, and judgment was rendered against the plaintiff Bircher.

The court, at the instance of the defendant Bircher, gave the following instruction: “If the jury believe that the sheriff of St. Louis county had in his hands, in force, the writ of restitution issued on the judgment in evidence before them, and that by direction of defendant said sheriff ordered plaintiff to remove from the premises in question or he, said sheriff, would execute said writ by removing him, and that plaintiff did then remove from said premises, and that this is the matter as complained of in the petition herein, then the said execution is a sufficient justification to defendant, and plaintiff can not recover.”

The plaintiff took a nonsuit, with leave, &c.

H. N. Hart, for plaintiff in error.

I. The appeal was not returnable until the March term, 1855. The land court could acquire no jurisdiction over the appeal at the October term, 1854, except by consent. (R. C. 1845, p. 348, § 12, 20; 12 Mo. 292; 1 Denio, 431, 680; 2 Comst. 464; 5 Wend. 136; 7 Paige, 247; 9 Id. 574; 6 How. 113; 4 Wend. 204; 4 Comst. 514.) The dismissal of the appeal at the October term was such an irregularity as rendered the judgment and writ of execution nullities. Such a judgment, when once set aside, is as if it had never been. (1 Levinz, 95; 1 Strange, 509.) The judgment having been afterwards vacated and set aside, the writ afforded no protection to the party by whom it was sued out. (1 Levinz, 95; 2 Strange, 73, 707, 1002; Ld. Raym. 73; 1 Strange, 509; 3 Wils. 341, 368; 4 Barn. & Cress. 38; Ryan & Mo. 278; 2 Cr. M. & R. 30; 1 Gale, 104; 5 Tyrw. 721; 5 B. & Ald. 746; 3 East, 128; 15 East, 613; 9 Dowl. & Ry. 44; 2 Tidd's Pr. 1032.)

F. C. Sharp, for defendant in error.

I. The court properly declared the law in the instruction given. The judgment against Young was a valid subsisting judgment. The court had jurisdiction of the subject matter. The execution issued was regular. It protected Bircher in its legal enforcement. Although the judgment may have been voidable, yet the defendant is not liable for the levy. (Bank of Mo. v. Franciscus, 15 Mo. 304; 2 Comst. 700; 11 Mo. 295.) The judgment was not void, however irregularly or improvidently rendered, but only voidable, and protected Bircher. (16 Mo. 332; 11 Mo. 295; 12 Mo. 295; 16 Mo. 173.) The judgment being in force at the issuing of the execution, the fact that it was afterwards avoided does not by relation affect the proceedings or render the plaintiff therein or the sheriff liable for its execution while in force. (15 Mo. 303.) Bircher having a judgment of a competent court, with a regular writ thereon, cannot be made liable for its enforcement by any subsequent action of the court.

SCOTT, Judge, delivered the opinion of the court.

There is no doubt but that the judgment in this case was irregular, and it was properly set aside or vacated. We do not deem it necessary to determine the question raised on the...