Harris v. Chouteau

Wagner, Judge, delivered the opinion of the court. The only question presented in this case is the proper con- ' struction to he given, to the 46 th section of the “Act regulating executions.” (1 R. C. 746.) It appears from the record that one Guinotte commenced a suit against the defendants in the Common Pleas Court of Kansas City; the defendants were then all residents of Jackson county, and personally served with process. They all appeared and defended the action, and judgment was ren [167] dered against them and in favor of the plaintiff, at the June term, 1860, of the Common Pleas Court. Execution was issued on the said judgment, returnable to the then next October term of said court, and levied on the same property now in controversy here. The defendants, then appealed from the judgment of the Common Pleas Court to this court,, and obtained a stay of execution; and this court, at its July term, 1868, affirmed the judgment, and remitted the record, with their decision, to the court below. Execution again issued from the lower court February 8th, 1865, and was levied op the same property levied on under the first execution. The property was sold under the execution at the May term, 1865, of the Common Pleas Court, and Harris, the present plaintiff in error, became the purchaser. Subsequent to the service of process, the defendant Chouteau removed from Jackson to St. Genevieve county, where she resided at the time of the issuance of the last execution, and the sale thereunder. At the same term at which the property was sold, the defendants appeared and filed their motion to set aside the sale on the ground that they were not residents of Jackson county, and had no notice of the sale. This motion the court sustained, and Harris excepted. The 46th section of the execution act provides that “.when real estate situated in a different county from that in which the defendant in the execution, owning such real estate, resides, is sought to be sold under execution in favor of the plaintiff therein, it shall be the duty of the plaintiff to cause a notice in writing to be served on the defendant or defendants owning the real estate, if residing in the State,, stating the fact of the issuing of the same, how or to what county directed, and to what term of the court said execution is returnable.” In Hobein v. Murphy, (20 Mo. 448,) this statute was under consideration in this court, and it was then decided that the notice of execution required to be given to a judgment debtor who is a non-resident of the county in which the [168] land to be sold is situated, was not necessary in the sale of mortgaged land made under a special fieri facias. It is true the language of the statute is general and makes no exceptions, but strictly embraces in its words all execution sales of land situated in a different county from that in which a judgment debtor resides ; but, in giving it a practical application, will a literal construction or interpretation carry out its manifest spirit and intent? We think not. To arrive at the mischief intended to be remedied, we must look at the object the Legislature had in view in passing the law. There can be no question that it was to prevent undue advantage from being taken of the debtor, and preserve his property from being sacrificed. Debtors frequently own-land in other counties than that in which they reside, or in which the judgment is Obtained, and the law gives the judgment creditor the right to have his execution issued to any county in the State. If the judgment creditor is so disposed he may issue his execution to a remote county, have the land of his debtor levied on and sold, and possibly buy it in at a great sacrifice, if the owner is not notified so that he can be there and protect his rights. It was to prevent this unconscionable advantage from being taken that the law was enacted. But where a party is brought into court by personal service, and judgment taken against him, and execution issued to the sheriff of the same county in which the judgment is had, he is certainly fully notified of all the proceedings. On the rendition of the judgment he may expect, as a matter of course, if the debt is not paid off and discharged, that an execution will follow; and as by law the execution will issue to the county in which the judgment is taken, without the plaintiff gives different directions, he will be impressed with full notice, and it is only when the judgment creditor gives different directions and orders his execution to another county, that he can bring himself within the operation of the mischief intended to be remedied by the law. His removal to another county after the institution of proceedings will make no difference. [169] The court erred in sustaining the motion, and the judgment is reversed and the cause remanded. The other judges concur.