272 Mo. 432 | Mo. | 1917
I. In 1900 Frederick W. Holterman. the defendant herein, executed á promissory note to H. J. Holdenreid, upon which the latter afterwards obtained judgment before a justice of the peace. In 1903 said judgment was revived in the sum of $107.37 and a transcript filed in the circuit court. Under an execution ordered and issued thereon a levy was made on certain real estate in City Block 5583 by the sheriff of the city of St. Louis, and the property was sold under said levy to J. C. W. Crouch for $62.70. Thereafter Crouch instituted this action in ejectment against defendant Holterman for possession and damages, and defendant, though personally served with process, made default, whereupon judgment was rendered in favor of plaintiff for possession, for rents in the sum of $39.60 and for costs. After the lapse of the term, execution issued on this judgment, directing the sheriff to oust de
The motion, was sustained on the theory that the premises were the homestead of defendant Holterman and that the judgment for possession in ejectment was void.- Plaintiff appealed to the St. Louis Court of Appeals.
When the cause was argued before the Court of Appeals no question was raised as to its jurisdiction, but that court, upon taking the case up for consideration, held that as the motion to quash had been filed in an action of ejectment, it had no jurisdiction and transferred the cause to- this court for final determination.
As far as the defendant is concerned the judgment is conclusive as to the matters relied on in the motion to quash, although not conclusive against his 'wife, for she was not a'party to the judgment nor any of the proceedings upon which it was based. Nor are her homestead rights precluded by judgment nor subject to deprivation through process issued thereunder, and she may assert them in any proper proceeding.
It necessarily follows that the action of the trial court in this case, sustaining the motion to quash filed by defendant, in the ejectment suit, was erroneous. It is therefore reversed and the cause remanded for such other proceedings as ' the parties may see fit to take.