13 Mo. App. 345 | Mo. Ct. App. | 1883
delivered the opinion of the court.
This appeal is taken from an order made in a proceeding by motion setting aside an execution sale, and awarding a writ of venditioni exponas in respect of the property levied upon. No exception was taken to. the final order of the court upon the motion ; but the appellants, the American Wine Company, which was the plaintiff in the execution, and Isaac Cook, who was the purchaser at the execution sale, on the day on which the order was made, filed motions to set aside the order, and for a new trial, or rehearing of the motion, setting forth specific reasons therefor; which motions the court overruled, and the appellants, at the time,
This ruling seems highly technical, and if I were asked to give a reason for it, I should not venture to do so. It was established as a rule of practice by the supreme court, and this court has therefore felt itself not at liberty to disregard it, but has followed and applied it wherever it has been insisted on, and must do so now.
It therefore remains only to consider the objection that the court had no jurisdiction to entertain the motion to set aside the execution sale. The objection is not well taken. That this is a proper mode of proceeding, is settled by a long line of decisions in this state ; and it is no obj ection that, in order to succeed on such a motion, the moving party sets out the facts on which he rests his claim for relief with as much fulness as he would if he were seeking the same relief through a bill in equity. He will seek his relief by a presentation of the facts which entitle him to that relief; and it is certainly no objection that he sets those facts out with fulness and precision. The motion in this case was made on the first day of the term after the sale took place, which was the return day of the writ of fieri facias. There can, therefore, be no objection to the jurisdiction growing out of any delay in instituting the proceeding. Nelson v. Brown, 23 Mo. 13; Ray v. Stobbs, 28 Mo. 35; Downing v. Still, 43 Mo. 309, 321. Every court has control of its own
The appellant Cook was properly notified of the motion. There is nothing in the objection that he could not be brought into court in such a manner as to conclude his rights, except by summons in a suit in equity. In Malloy v. Batchelder (supra), the principle is recognized that even the vendee of the purchaser at an execution sale may be brought before the court by notice, and thus made a party to a motion to set the sale aside. In that case it was held that the motion to set aside the sale was properly denied, for the reason that such vendee had not been notified.
It thus appears that there is nothing in this record for an appellate court to review; and, strictly speaking, our duty does not require us to say more. But it may not be amiss for us to say that we have looked through this record, and, while we cannot doubt that the sheriff and his deputies acted in good faith, it discloses that they acted upon highly erroneous views of their duty. Three hundred and thirty-three shares of stock, of the par value of $100 per share, and of the actual value of at least $75 per share, were levied upon under a judgment for $7,539.71. The levy was
The judgment is affirmed.