Mellier v. Bartlett

89 Mo. 134 | Mo. | 1886

Black, J.

The plaintiff, in 1875, obtained a judgment in the circuit court of St. Louis county against the defendant for $395. On the fourth of December, 1883, he had an alias execution issued on the judgment, directed to the sheriff of Butler county, returnable to the February term of the circuit court of St. Louis county. The sheriff of Butler county levied the execution upon property in that county and advertised the same for sale on the twenty-second of January, 1884. On the day preceding the day of sale, the defendant filed a motion in the circuit -court of Butler county, that court being then in session, to quash the levy, on the ground that the defendant was the head of a family, and that the property levied upon was his homestead and occupied as such. The court heard and sustained the motion on the day after it was filed.

The first question is whether the circuit court of Butler county had any jurisdiction to hear and determine the motion, inasmuch as the writ issued from another circuit court. Section 2405, Revised Statutes, 1879, gives the execution debtor a right to apply to the j udge of the court out of which the execution issued, to have the same stayed, set aside or quashed. That section, as has been several times decided, furnishes a remedy in the vacation of the court, and in no way interferes with the right of the defendant to make his motion in open court. 44 Mo. 415; 65 Mo. 446. The question, therefore, still remains : In what court must the motion to quash the levy be made ? The general rule undoubtedly is that every court has the exclusive control of its process, and no other court has a right to interfere with or control it. Nelson v. Brown, 23 Mo. 19; Keith v. Plemmons, 28 Mo. 104. Hence, an injunction cannot be issued by one court to enjoin an execution issued from another court. Pettus v. Elgin, 11 Mo. 411. Again, the circuit court of one county has no jurisdiction to quash an execution in the hands of the sheriff of that county where the execution issued from the circuit court of another county. McDonald Tiemann, 17 Mo. 603.

Counsel for the respondent concede the binding force of these authorities to the extent that the court issuing the execution is the proper tribunal to pass upon any alleged defects in the writ, but insists that the court of the county where the writ is being executed may control the officer to the extent that he shall not make a wrongful use of it. This line of reasoning is based upon the notion that the officer in the execution of the writ is the officer of the court of the county to-which the writ is sent. 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 law allows executions to be issued from the court of one county to the sheriff of another, and the-party has his remedy in the court from which the process is issued ; and it is no hardship that he should be obliged to go to that court for relief because of any abuse of the writ. The fact that the land levied upon is-situate in Butler county can make n'o difference'. Were this a proceeding to set aside the deed made by virtue of a sale under the execution, then the court of Butler county would be the proper tribunal in which to bring the suit. With this conclusion the other questions need not be considered.

The judgment quashing the levy is reversed.

The other judges concur.