Crouch v. Holterman, 272 Mo. 432

272 Mo. 432 | Mo. | 1917

BOND, P. J.

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 defendant and deliver possession of the property to plaintiff. Defendant thereupon filed a motion to quash the execution, claiming that said premises constituted his homestead and as such were exempt from levy and sale under execution.

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.

Quashing Execution. II. It appears that the motion to quash the execution filed by defendant fails to specify any infirmity in the judgment, or prior proceedings or any defect or imperfection on the face of the process of execution. It was not in terms or by intendment a proceeding to set aside the judgment for any ground on which a bill in equity might be sustained. It is simply a motion by defendant in an execution following a judgment in -an action of ejectment wherein he was personally served with process to set aside the execution for a matter of defense which he might have interposed in the action of ejectment. [Barton v. Walker, 165 Mo. 25; Farra v. Quigly, 57 Mo. 284.] In these two cases the defense of homestead exemption was interposed in an action of ejectment. In the present case the defendant did not make any defense to the suit in ejectment, but after execution, sought to quash the execution on the judgment against him on the ground that he was a homesteader. All defenses which he might have interposed prior to the judgment in ejectment are concluded by. that judgment, since it was not appealed from, leaving the defendant therein only the right to quash the execution upon proper grounds which are, in substance, any which go to the integrity of the judgment, the jurisdiction of the court or defects in the process itself. [Buzzard v. Robertson, 107 Mo. App. 557; State to use v. Berry, 9 Mo. App. 42.]

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.

All concur, except Woodson, J., who dissents.