71 Mo. App. 200 | Mo. Ct. App. | 1897
In 1888 the defendant Hailey was the sheriff of Barry county. His codefendants are the sureties on his official bond. The present action is on the bond, and the relator complains that Hailey levied upon and sold a building belonging to it under an execution against one E. W. Barnes. The circumstances attending the sale are these: In 1888 one Mason performed work for Barnes in the construction of a foundry building located on .block Gr in Monett Town Company’s third addition to the city of Monett in Barry county. In December, 1888, he filed a mechanic’s lien against the building. It was stated in the lien paper that Barnes owned the building, and that the Monett Town Company owned the land. The relation (if any) existing between Barnes and the company as to the land was not stated. * In due time Mason began his suit against Barnes alone to enforce the lien. This suit was prosecuted to a judgment, but the judgment entry is not set out in the abstract. On November 23,
The sale took place on the tenth day of December, 1889, and Mason became the purchaser. The claim or title of the relator to the building rests upon the following facts: The firm of Davis and Chapell and one Allen Miller also did work and furnished materials in the construction of the foundry building. Barnes failed to pay and they filed mechanic’s liens against the building alone. It is also stated in their lien papers that the land upon which the building is located belonged to the Monett Land Company, but it is nowhere stated by what right or authority Barnes erected the building on the land. Suits to enforce these liens were instituted before a justice of the peace against Barnes alone. He could not be found, and he was notified of the'institution of the suits by publication as provided by statute. The amounts claimed were found by the justice to be due, and the liens enforced against the building only. Transcripts of the proceedings in the cases were filed in the office of the clerk of the circuit court of the county, as provided by statute, and afterward, to wit, on June 24, 1889, executions were issued by said clerk, which directed the sheriff to levy upon and sell the foundry building. The sheriff complied with the mandates of the executions, and on the seventh day of October, 1889, he sold the building. thereunder, and the relator became the purchaser.
ought not to be held liable in damages for the execution of the process. He can only be held as a trespasser where it affirmatively appears from the writ itself that the court issuing it acted without jurisdiction of the subject-matter (2 Freeman on Executions, sec. 254), or when he finds the property mentioned in the execution in the adverse possession of a third party who is not in privity with the defendant in the execution. There is nothing in the record to bring the present case within either exception. If the circuit court acted without jurisdiction in the Mason case, or its judgment therein was irregular or illegal, it did not so appear upon the face of the special execution. Neither was there anything to show that at the time of the levy under the writ the relator was in possession of the house. He had made no attempt to take possession of the building or to remove it from the premises.
The judgment of the circuit court will be reversed and the cause dismissed.