180 Mo. App. 466 | Mo. Ct. App. | 1914
This is a suit to enjoin the defendant Hufft, who is sheriff of Laclede county, from enforcing against plaintiffs a fee bill issued by the clerk of the circuit court of Greene county, Missouri, in a suit lately pending in such last named court, wherein one Simpson was plaintiff and Bantley defendant. The other defendant, Smithpeter, is the person at
The court erred in overruling this demurrer. Our Supreme Court in the early case of Pettus v. Elgin, 11 Mo. 411, ruled that an injunction cannot issue from one court to enjoin an execution issued from another.. In that case an execution issued from St. Charles county to the sheriff of St. Louis county, and an action was brought in the latter county to enjoin its enforcement. The Supreme Court held that the facts showed that the execution ought to be enjoined, but said: “The circumstance, that the process was in the hands of the sheriff of St. Louis county, gave the circuit court of that county no control of the writ by injunction, sale or otherwise. As to that process, the sheriff of St. Louis county was an officer of the circuit court of St. Charles county, it emanating from
The reason for the rule just stated is to maintain comity between courts and prevent conflicts of jurisdiction (Bank v. Poole, 10 Mo. App. 133, 142, 141 S. W. 729), and both the rule and reason is well stated in Mellier v. Bartlett, supra, as follows: “The principles which are at the foundation of the cases before cited are that each court has the sole control of its process, and that the sheriff of the county to which the execution is sent is, as to that writ, the officer of the court from which the writ emanated. We cannot see any substantial ground for the distinction pressed upon our consideration. The circuit court of Butler county had no more power to quash the levy than it had to quash the execution. Any other conclusion must lead to much inconvenience and confusion. The
Plaintiffs concede the correctness of this ruling as-applied to executions but seem to think that such rule ought not to be applied to fee bills. No reason for the distinction is pointed out and we think none exists. It will be noted that the courts in many of the cases above cited do not confine the rule to executions but apply same to process and writs in general. It is-said in Scrutchfield v. Sauter, supra, that: “The statute does not confine the proceedings for obtaining relief to the defendant in the judgment, but ‘any person against whose property an execution or order of sale shall be issued’ is entitled to the remedy afforded by the statute and is also confined to the forum provided.” Section 10690, Revised Statutes 1909, expressly provides that fee bills shall issue to sheriffs, who shall collect the same, “and if the person or persons and their sureties for costs properly chargeable with such fees shall neglect or refuse to pay the amount thereof, and costs for issuing and serving the same, within thirty days after demand of said sheriff or other officer aforesaid, the same shall be levied of the goods and chattels, moneys and effects of such persons or their sureties, in the same manner and with like effect as on an execution.” A fee bill is the proper process to collect fees in favor of officers and witnesses against the party for whom the services are rendered (Hoover v. Railroad, 115 Mo. 77, 21 S. W. 1076), and that case quotes from Newkirk v. Chapron, 17 Ill. 343, 353, holding that a fee bill “becomes, for this purpose, like an execution against the cost debtor.” Exemptions are allowed to a fee bill debtor the same as to an execution debtor. [State ex rel. v. Emmerson, 74
For aught that is stated in this petition, the plaintiffs have an adequate remedy by a motion to quash the fee bill or any levy thereunder, which motion may be filed in vacation of the Greene county circuit court, as-well as in term time. [Section 2244, R. S. 1909; Mellier v. Bartlett, 89 Mo. 134, 137, 1 S. W. 220; Parker v. Railroad, 44 Mo. 415, 419; Heuring v. Williams, 65 Mo. 446.]
It has also been ruled that there is an adequate remedy at law and injunction is not the proper remedy where the sale of personal property is threatened under execution or other process, based on a void judgment ; and this would certainly be so where there is no-judgment whatever on which to base the same. [Howlett v. Turner, 93 Mo. App. 20, 24; St. Louis & S. F. R. Co. v. Lowder, 138 Mo. 533, 39 S. W. 799; Missourir K. & E. Ry. Co. v. Hoerth, 144 Mo. 136, 148, 45 S. W. 1085; Ostmann v. Frey, 148 Mo. App. 284, 287, 128 S. W. 257; State ex rel. v. Brown, 172 Mo. 374, 381, 72. S. W. 640.] A fee bill does not need a judgment for its basis but it does need a proper taxation of costs. The present petition alleges that the obligation for costs signed by plaintiffs never left Laclede county;, was never filed in, or accompanied the transcript of thecas e to, Greene county; that no judgment was rendered or taxation of costs had, or could be had, .against, these sureties in that court, though the case there has been finally determined. And, to make the matter doubly certain, the petition further alleges: “and the
The judgment of the trial court will therefore be reversed.