158 Mo. App. 105 | Mo. Ct. App. | 1911
(after stating the facts as above).— This is an action to enforce a right that the relators claim by virtue of section 2218, Revised Statutes 1909, concerning executions and what notices shall be given by the sheriff in cases of sales of real estate, which is, in part, as follows: “When real estate shall be taken in execution by an officer, it shall be his duty to expose the same to sale at the courthouse door, on some day during the term of the circuit court of the county where the same is situated, having previously given twenty days ’ notice of the time and place of sale, and what real estate is to be sold and where situated, by advertisement in some newspaper printed in the county which may be designated by the plaintiff or his •attorney of record, if there be one regularly published, weekly or daily, and if not, by at least six printed or
The evidence shows that on the éth day of May, 1911, the relators herein obtained a judgment in the circuit court of Phelps county against John R. Jones and others in the sum of $689.18 and $25 additional as attorney’s fee, and that a vendor’s lien was declared on the real estate described in said judgment. That on the 26th day of June, 1911, relator’s attorney of record, B. H. Rucker, ordered a special execution on said judgment and the same was issued by the clerk of the circuit court of Phelps county, and was by him delivered to the respondent herein who was at that time and is now sheriff of said county. That respondent delivered the notice of sale for publication to the Rolla Times. The controlling facts as to his action in this matter are brought out in his own testimony as follows:
“Q. I will ask you, Mr. Wilson, whether as sheriff of Phelps county, Missouri, on or about the 26th day of June, 1911, you received from W. R. Ellis, clerk of the circuit court of Phelps county, a certain notice of sale or special execution in a case in which L. A. Black and M. E. Gilmore were plaintiffs and John R. Jones, H. C. Berger, A. B. Holt, and Otto Schoot were defendants? A. I did. Q. What did you do with these notices and orders? A. I turned them over to the editor of the Rolla Times for publication. Q. Who is the editor? A. J. N. Lavender. Q. How long after you received these papers from the clerk of the circuit court was it until you turned them over to the editor of the Times? A. I don’t remember the exact number of days, but two or three days, I think; I can’t remember exactly. Q. Did you have any agreement or understanding with Mr. Lavender at the time you turned it over to him? A. I did not. I gave it to him and told him to publish it in the Rolla Times. Q. I will ask you whether prior to the time*116 you. gave this notice to Mr. Lavender for publication, Mr. B. H. Rucker, or the relators named in this case, or any one for them, had designated any newspaper in which you should publish this notice? A. They did not. Q. Mr. Wilson, I will ask you if after you delivered this paper to Mr. Lavender for publication you had any talk with Mr. Rucker as to publishing it ? A. Yes, sir, I did'; in front of my store; I don’t remember the day. Q. Was this after you delivered this notice of sale to Mr. Lavender? A. Quite a while after, but I don’t remember the number of days; it must have been a week after that. Q. ■ Was that after you received notice of an application for a-writ of mandamus or before that you had this talk with Mr. Rucker? A. It was before this notice was served that I had the talk with Mr. Rucker.” Cross-examination: <£Q. Did you have a talk or have any conversation with Mr. Ellis, the circuit clerk, at the time he delivered •this special execution to you? A. I had a talk with him at that time but don’t remember just what it w*as; don’t remember whether it was about this special execution; we had a talk along this line but don’t remember that it referred particularly to this execution. Q. What conversation did you have about the execution he delivered to you at that time? A. He said something about it that he believed I was to take these to the Herald. We may have talked about these things and I think I said I don’t believe any one has a right to tell me where I must take these things. Q. Wgre there any notes or notations on this special execution? ■A. On the bottom of this one it said ‘Herald.’ Q. • What did you understand by that notation? A. There wasn’t anything enough to understand what that-meant. Q. What did you- understand by it? A. I couldn’t say that I understood anything about it. The word ‘Herald’ was there but did not have any writing to indicate what it meant. Q. Didn’t you' have a conversation with Mr. Ellis, the circuit clerk,; at the*117 time you got this special execution with that notation on it as to where this should be published? A. He said that it was understood that it was -to go to the Herald hut he didn’t say who wanted it to go to the Herald or anything of that kind. Q. Did you have any talk with Mr. Rucker, the. attorney of record in this case, as to where .this notice should he published? A. I had a .talk with him a day or so after I delivered it to Mr. Lavender. Q. Whereabouts? A. He came down to the store, in front of the store, and asked why I didn’t give that notice to the Herald. I told him I didn’t consider that I had to give it to any paper, I could give it where I pleased and that I had taken it and given it to the Times. He insisted that he had a right to have it taken to the Herald and that he wanted it there and that he wouldn’t pay any costs to the Times. I said that I had given it to the Times and the only way they would get it away was' to take it away from them and that I considered it my right to take it where I pleased. Q. Mr. Wilson, are you a stockholder in the Rolla Times? A. I am. Q. How much stock have you got in it? A. Twenty-one shares. ... In my conversation with Mr. Rucker, I told him that the editor of the Herald was no friend of mine. Q. And wasn’t that the reason you didn’t deliver the notice of sale to him? A. The reason I said was that I considered it my right to take them where I pleased and I was going to take them there.”
J. N. Lavender, editor and business manager of the Rolla Times was sworn and testified, in part as follows: ‘ ‘ That the Rolla Times was and is a weekly newspaper published in Rolla, Phelps county, Missouri. Q. I will ask you, Mr. Lavender, if you received a notice of sale and order for publication in your paper from Mr. Wilson under the style of L. A. Black and M. E. Gilmore v. John R. Jones and others? A. I did. Q. When did you receive that notice ? A. Somewheres along about the first of July, I don’t re
The statute, in a case like the present, gave the relators or their attorney the authority to designate the newspaper in which the notice of sale should be published, and when such designation was properly made, it became the clear statutory duty of the respondent as sheriff to publish the notice in the newspaper so designated, and it was also clearly the official duty of the respondent to give the relators or their attorney a reasonable opportunity to exercise their statutory privilege of designating the newspaper in which they desired the publication of the notice made, and, if in the meantime the respondent wrongfully gave the notice of sale for publication to some other newspaper, it was no less his duty to give such notice or another notice of sale for publication to the newspaper which the relators or their attorney had selected.
Under the evidence given by the respondent himself, we think it was substantially shown that he had sufficient notice as a matter of law that the relators desired the notice of sale published in the Rolla Herald and also that relator’s attorney made a sufficient
But a more fundamental question confronts us, going to the very root of the relator’s right to maintain this action; that is, whether their petition for an alternative writ shows such a special interest in the matters in litigation herein as to entitle them to the remedy of mandamus.
The relators by their petition base their right to institute the present proceedings upon the fact that they have a judgment declaring a vendor’s lien on certain real estate and that a special execution has been issued thereon; so that it appears on the very face of the application that a private right only is involved in this proceeding. In such case, the law requires a different showing as to relator’s interest than where a public right is involved when such right is sought to be enforced by a private citizen. Where a public duty is sought to be enforced in which the public generally is interested by private citizens on behalf of the public as well as on their own, they may move for a writ of mandamus and are not required to plead or prove any special or particular interest in the result of the performance of the general duty because the people are
The question presented here is whether the rela-tors by their pleadings have qualified themselves under these principles of law to be entitled to a peremptory writ of mandamus to compel the sheriff 'to publish the notice of sale in the Rolla Plerald. The relief sought in this proceeding is unquestionably merely private as distinguished from public, and, under the authorities cited, the relators, in order to be entitled to the remedy sought, must show a direct, special and substantial interest in themselves in the subject-matter • of the proceeding. How do the relators in their petition or by the alternative writ meet these requirements? From their pleadings, the only interest shown by the relators in the publication of the no • tice of sale is to enable them to realize at the execution sale of the real estate the amount of their judgment, interest, and costs, or as near such amount as practicable. There is no showing in relator’s petition that the Rolla Times is not a weekly newspaper having an equal or greater circulation than the Rolla Herald, or that the publication of the notice of sale in the Rolla Times would not as well notify persons who might be interested in purchasing the property at the execution sale. There is no showing that the amount that would be realized from a sale of the land under relators’ special execution would be any less if the notice of such sale wére published in the Rolla Times.
Other questions of great interest are presented, and urged with ability by learned counsel in this case, but the view we have taken of the case does not require the widening of the scope of this discussion in order to reach a decision. The relators have failed to state in their petition and in the alternative writ of mandamus facts showing any direct and special pecuniary interest in the subject-matter of the controversy and their application for a peremptory writ of mandamus is accordingly denied.