State ex rel. Carter v. Clymer

81 Mo. 122 | Mo. | 1883

Philips, C.

The appellant, as collector of Henry county, obtained judgment on order of publication against D. K. Clymer, as a non-resident, to enforce the collection of taxes, alleged to have been assessed on lands of D. K. Clymer. Proof of publication was made, and judgment therein rendered as prayed, enforcing the lien on said land for taxes. Execution was duly issued thereon; the land advertised for sale; and, on the return day of the writ, and the day fixed for such sale, one Kleaver Clymer appeared in court and filed a motion in said cause, setting out, in substance, that he was the true owner of said lands, that he had not been served with any notice of the pendency of said suit, and had not appeared therein, hitherto, and the judgment was not binding on him or said land, and, that the defendant, D. K. Clymer, never owned said land. It was, therefore, moved that said writ be quashed, and the sale stayed.

On the hearing of this motion, evidence was introduced by the promoter of said motion, tending to show that Kleaver Clymer was the owner of said land, and the deed to him was duly recorded in the recorder’s office, of said county. In the deed he is designated as Dr. K. Clymer, the evidence showing that he was a practicing physician. To all this evidence the plaintiff in said cause, objected for incompetency, irrelevancy, etc. The court sustained the motion, quashed the writ and stayed the sale. Erom this action of the court, the plaintiff has appealed to this court.

Several questions are discussed by counsel in their briefs, but there is one, that in our opinion, is decisive of the case, which renders the consideration of any other unnecessary. The principal question is, as to the right of K. Clymer to come into the case by the motion to quash. There is no doubt of the right of a party defendant to interpose a motion to set aside the execution, and levy in given cases; but I have been unable to find any warrant in the statute, or any adjudged case, for a stranger to the suit thus fo interfere. The only case in which this question came before this court, where it might have been determined, is that of Fisk v. Lamoreaux, 48 Mo. 523. Currier, J., who delivered the opinion, expressed more than a doubt of the right of a stranger to interpose such a motion, but did not definitely pass on it. Ereeman on Executions, section 75, says: “The general rule, that none but the parties to the suit, will be allowed to interfere with its management, is equally applicable to the writ of execution which may be issued at the termination of the action. None but the parties to the writ, who are liable to be injured by it, can complain of the irregularities by which it may be infected. Hence no stranger to the action can obtain an order quashing the execution.” The authorities cited, amply support the text. Mr. Justice Lawrence in Bonnell v. Neely, 43 Ill. 290, speaking of this matter, says : “ If this proceeding can be sustained, then we should be obliged to hold that the claimant of personal property, which has been levied on, under an execution to which he is not a party, may have his title tried by means of a motion, instead of being driven to an action of replevin or a trial before a jury of the right of property. We cannot hold this. That strangers should be allowed to have adverse, and often complex rights settled in this mode, is inconsistent with the spirit of our law.”

The case at bar is an apt illustration of the difficulties suggested. E. Clymer, a stranger to the action, appears at the instant of the sale for the enforcement of plaintiff’s judgment, and hy mere motion, raises questions involving his identity with the person named in the writ, denying any title or interest of the defendant in the writ to the land levied on, and ready for sale, and alleging title in himself to the land. In this summary mode, without other form of pleading, eo instanti, the court is called upon, while the sheriff, perhaps, is waiting at the court house door to proceed with the sale, to hear and determine these complex questions of personal identity and of the ownership of real estate. It was, certainly, never in the contemplation of the law, that the title to real estate, between a stranger to the record and the execution defendant, should be tried and disposed of in such a manner. The parties are entitled to a jury, and to tame to prepare to try so grave issues, as provided by statute. Such a method would supersede tbe action of ejectment in many instances, as well as the orderly and graver proceedings by bills in chancery. If tbe defendant in tbe tax suit was not the owner of the property proceeded against, the purchaser would acquire no title. If the said K. Clymer was not a party defendant to that action, for the enforcement of the tax lien, his rights of property in the land were in no way affected.

The judgment of the circuit court must, therefore, be reversed, and the cause remanded. '

All coueur.