21 Mo. App. 313 | Mo. Ct. App. | 1886
delivered the opinion of the court.
The appeal in this case is prosecuted from a decree enjoining the sale of a tract of land under two deeds of trust, on the theory that the plaintiff has a judgment lien on a portion of the tract, and that the defendants ought to be required to resort to that portion upon which the plaintiff has no lien before resorting to that portion upon which the plaintiff has a lien — in other words, on the doctrine of marshaling securities. An insuperable difficulty in the way of sustaining the decree is that the plaintiff does not appear to be a judgment lien holder. He indeed recovered a judgment in a proceeding in equity seeking to charge the tract of land in controversy as the separate estate of Mrs. O’Donoghue while under coverture, and had a special execution thereon under which the property was sold by the sheriff; but the court, subsequently, a year after the rendition of the judgment,
The court had jurisdiction to set aside the judgment for irregularity at any time within three years after its-rendition. Rev. Stat., sect. 3727; Stacker v. Cooper Circuit Court, 25 Mo. 401; Harkness v. Austin, 36 Mo, 47; Downing v. Still, 43 Mo. 309; Phillips v. Evans, 64 Mo. 17; Craig v. Smith, 65 Mo. 536. It may have exercised this jurisdiction erroneously, but, nevertheless, until the order is reversed by the supreme court, it stands-as the law of the case, binding upon the court which made the order, upon this court, and upon every other court. It was the act of a superior court of record, apparently in the exercise of a power conferred upon it by statute, and we can not inquire in this collateral proceeding whether the power was properly or improperly exercised.
The status of the plaintiff, then, is, that he has an action pending, the object of which is to charge a debt upon this particular estate, in which action he may or may not get a judgment. This does not give him a lien or any security which he can have marshaled, as be
The judgment will be reversed and the petition dismissed. It is so ordered.