60 Mo. App. 170 | Mo. Ct. App. | 1895
Section 4967 of the Revised Statutes of 1889, provides: “If any person against whose property any execution or order of sale shall be issued, apply to any judge of the court out of which the same may have been issued, by petition, verified by oath or affirmation, setting forth good cause why same ought to be stayed, set aside or quashed, reasonáble
It will be seen from the tenor of these provisions that they do not contemplate a petition filed in court, but an application to the judge of the court in vacation, it being the evident object of the statute to enable a party, against whose property an execution has been illegally issued, to stay proceedings thereon before the court convenes. The distinction between an apxolication to the court by motion, and an application to the judge by petition, has been frequently pointed out. Parker v. Railroad, 44 Mo. 415; Heuring v. Williams, 65 Mo. 446; Mellier v. Bartlett, 89 Mo. 134.
The defendants Hermann and Hermine' Meyer, mistaking the object of these provisions, filed'in the court in term time a verified x>etition, asking that a certain execution issued out of that court against their property be stayed. The court made a temporary order to that effect upon their giving bond, and upon a subsequent hearing of the case refused to recall or quash the execution. This was' done at the December term of the court. The petitioners thereupon filed their motion for new trial, which the court continued to the next succeeding term, at which term it overruled the motion. The defendants thereupon appealed.
A preliminary question arises in the ease, namely, whether the defendants ought to have appealed at the December term, that being the term at which their
The court upon the hearing of the cause, against the objection of the movers, admitted testimony tending to show that the note on which the judgment was founded was obtained from Greve by duress, and that Hermann Meyer was cognizant of that fact. The execution sought to be quashed was levied on Mrs. Meyer’s property, and there was no evidence tending to show that Mrs. Meyer knew or ought to have known the defect in the original consideration. The evidence offered was objected to on that ground,'among others, but it is not apparent how it was admissible for any purpose. (When it appeared by uncontroverted evidence thatthe judgment was paid by one of the defendants therein, it became extinct, and an execution issued thereon thereafter was wholly unauthorized, and should have been quashed. McDaniel v. Lee, 37 Mo. 204; Hull v. Sherwood, 59 Mo. 172. The court can not upon a motion to quash inquire into the merits of the
The judgment is reversed and the cause remanded to the trial court with directions to quash the execution.