Fink v. Remick

Smith, P. J. Defendant Hunt filed a motion in the circuit court, the object of which was to vacate the judgment which had been rendered in the cause and to quash the execution issued thereon with the levy and advertisement made in pursuance thereof, alleging as his grounds therefor: (1) that the judgment was irregular on its face in that it was not a valid fieri facias against defendants Remick and Stone; (2) that there was a fatal variance between the advertisement and levy and the execution upon which the same were based, and (3) that the execution was issued upon a void and irregular judgment and erroneously commanded the sheriff to make the same out of the land described in the special clause thereof, only after failure so to make the same out of the defendants Remick and Stone, which had not been done. I. Section 3185, Revised Statutes, provides that the judgment in cases of this kind, if for the plaintiff, shall be against such debtor as in ordinary cases (sec. 2336), with the addition that if no sufficient property of [628] the debtor can be found to satisfy such judgment and costs of suit, then the residue thereof be levied of the property of the defendant charged with the lien therefor, as provided in section 3184. We think that the judgment, as recited in the execution, when examined in connection with the statutory provisions just referred to, will be found not subject to defendants’ objection. It sufficiently meets the requirements of the statute, both in form and substance. II. The sheriff’s advertisement showed that he proposed to sell “all the right, title, interest and estate ” of the defendants in and to said real property to satisfy said execution. It may have been true that defendants Remick and Stone had no “right, title, interest and estate” in said real property, and if so, it is quite difficult to perceive how such an advertisement and proposed sale would have in any way prejudiced the rights of the defendant Hunt, for it was a matter about which he need have no concern. III. The execution upon its face was made return-' able to the January term, 1888, of the circuit court' of Jackson county. The sheriff’s advertisement gave notice that he would sell the right, title, interest and estate of the defendants on the fourteenth day of December, 1887, which was prior to the return day of the execution. There is no statutory provision requiring a sheriff to make return on an execution prior to the time it is made returnable on its face. The defendant could not tell what the return of the sheriff would be on said execution. His motion could not, at the date of its filing, question a return not then made, or authorized to be made. The defendants’ contention is, that, under the statute, it was the duty of the sheriff to have first made an effort to satisfy the execution out of the property of the debtor defendants, and failing in that, he would have then, for the first time, had authority to enforce the special clause therein against the real estate charged with the lien. [629] There was no allegation in the motion or evidence adduced in support thereof showing that sufficient property of the defendant debtors could have been found by the sheriff to satisfy said execution or any part thereof. A sheriff is bound to use in all cases reasonable diligence in searching for property. If he has knowledge of such property, no matter how obtained, it would be his duty to take such property in execution to satisfy the same. This is the rule in actions for false return against a sheriff. Fisher v. Gordon, 8 Mo. 381; Stevenson v. Judy, 49 Mo. 227. And no doubt the same rule would govern a sheriff in a case like this. It might be that, upon an affirmative showing that a sheriff had wilfully or negligently refused to take in execution property of a defendant debtor of which he had knowledge under circumstances like in the present case, that a court would arrest his action in making sale of the property specially charged with the lien. The presumption is always indulged that a sheriff has done his duty, but it may be overcome in a proper case by evidence. If the effort and failure of a sheriff to satisfy his execution out of the property of the defendant debtor is a condition precedent to the rightful exercise of the power to enforce the special clause therein, as defendants insist, then we think that the proper time to raise this objection would be after the return of the sheriff on motion to set aside the sale. Should the failure of the sheriff have the effect to deprive him of his jurisdiction to sell at all, and notwithstanding he does sell, then certainly the motion to set aside the sale would be a safe and appropriate remedy. But if the irregularity on the part of the sheriff is not jurisdictional, and does not go to the extent of depriving him of his power of sale, then the remedy of the defendant, whose property is charged with the lien, is by proper motion before the sale to quash the levy [630] and notice of sale, alleging that the sheriff had refused to take in execution property of the defendant debtor of which he had knowledge and out of which the execution or some part thereof could have been satisfied, or it may be that in such case the injunctive process of the court might be invoked with success. While none of these questions aré now properly before us for decision, we have been influenced to say what we have more for the purpose of showing that the grounds of defendants’ motion which we have last been considering, if not untimely urged, were at least insufficient in substance. After a rather diligent exploration of the record before us, we have been unable to discover any error prejudicial to defendant Hunt, therefore, the other judges concurring, the judgment of the circuit court is affirmed.