34 Mo. 340 | Mo. | 1864
delivered the opinion of the court.
On the 15th November, 1862, Waugh, the sheriff of Boone county, had in his hands five executions issued by the clerk of the Boone Circuit Court against Laforce, which, on that day, he levied upon twenty-one slaves of Laforce. Two of
On the third day of March, 1863, the sheriff levied the two executions of Parker and Henry, and of Carter, upon the same slaves, which were advertised and sold under all the executions, on the 24th day of March, 1863, for #4782.50.
At the May term, 1863, of the Boone Circuit Court, Parker, Henry, and Carter, moved the court for a rule upon the sheriff, requiring him to pay their executions out of the proceeds of the sale of said slaves ; and, upon the hearing of that motion, gave evidence of the matters above recited.
1. It is insisted that this court cannot review the decision of the Circuit Court upon a motion, because there were no objections to testimony on instructions or declarations of the law applicable to the case asked, and no motion for a new trial made. It has not been the practice of this court in reviewing the decisions of other courts upon motions, to require that the points of law determined should be specifically stated, or to require that a motion for a new trial should have been made. There is no great or controlling necessity for such requirements, and the establishment of such a rule would produce so much of trouble, and frequently of hardship and injustice, as to forbid that we should now begin such practice.
2. The order of Kirkbride to the sheriff on the 16th November, 1862, to let the property levied on remain in the hands of Laforce, caused his execution to become dormant, and constructively fraudulent and void, as against the subsequent executions. (Wise v. Darby, 9 Mo. 130; Field & Beardslee v. Livermore, 17 Mo. 218.) The plaintiffs’ executions are, therefore, entitled to satisfaction out of the proceeds of the sale of the slaves before that of Kirkbride ; and as the fund is sufficient to satisfy the executions of Orear and Hardin, as well as those of the plaintiffs, there is no necessity to look further into the case, for though Orear and Hardin may be entitled to precede the plaintiffs, yet they can suffer no injury, because Kirkbride is postponed to the plaintiffs. The case does not warrant that we should give any opinion upon the relative rights of Kirkbride, Orear, and Hardin.
The judgment of the Circuit Court is reversed and the cause remanded.