Groner v. Smith

Adams, Judge, delivered the opinion of the court. This was an action of ejectment brought by the plaintiff Groner against the defendant Smith, for lands in Polk county. The Circuit Court gave judgment for defendant, and the plaintiff has appealed to this court. The petition and answer are in the usual form, the answer simply pleading the general issue. Upon the trial the plaintiff showed title in himself, derived-under patents from the United States, and proved rents and profits, and rested. The defendant relied on a sheriff’s sale and-deed to himself, under a judgment and execution in attachment against the plaintiff as a non-resident of the State, at the suit of ■one Harris. The writ of attachment was issued by the clerk of the court in vacation, on the 8th day of July, 1868, and on the same day was levied by the sheriff on the property in dispute as the property of the plaintiff; and the clerk, when he issued the attachment, made out on paper an order of publication against the plaintiff as a non-resident, which was published in the usual way. Instead of filing the original order of publication and sending out a copy for publication, the clerk sent out the origi-' nal, which it seems was not returned to his office. At the return term of the writ of attachment, a judgment by default was rendered and made final, the suit being on promissory notes. But this judgment, although rendered, was not duly entered of record, but an informal entry was made, which, however, was sufficient to show that it was intended as a final judgment. In the year 1870 the defendant, who was purchaser at the execution sale, applied [322] to the court to have the informal judgment entered in full nunc pro tunc, which was done. The defendant also had the sheriff amend his return on the execution by leave of the court, so as to show by such amended return the levy and failure to make sale at the first term of the court to which the execution was returnable, by reason of the court not being in session; and that after advertising, etc., he sold at the next term, and the defendant' became the purchaser. There was no dispute but that the amended return recited the facts as they existed. The sheriff’s deed, however, did not recite the reason why the sale was not made at the return term of the execution, and this was relied on as fatal to the deed. The plaintiff also objected to the sheriff’s deed because, although in the testimonium he referred to its being sealed, yet the only seal or scrawl by way of seal was the word “seal” in Roman letters included between brackets at the end of his name, thus: “[Seal.]” The plaintiff also offered to impeach the sheriff’s sale by showing that the defendant interfered with other bidders and prevented them from bidding, and he proved that the plaintiff, who was the defendant in the attachment suit, was within the Confederate lines from some time in 1861 to 1865 ; that he went to Texas in 1861, and was afraid to return home, as the war was raging and he could not do so with safety; that his wife and family had gone to Illinois at the time of the attachment. And plaintiff contends that his absence within the Confederate lines when the suit was brought, and during its pendency, rendered the whole proceeding void. The objection that the sheriff’s deed was not under seal is not tenable. This point has been settled by this court, and it is unnecessary to discuss it here. The word “seal” at the end of the name between brackets, and referred to and adopted in the testimonium, was a sufficient sealing. (See R. C. 1855, p. 352, § 5; Underwood v. Dollins, 47 Mo. 259.) The omission in the sheriff’s deed to recite the reasons why the sale was not made at the first term of the court is not such an omission as to render the deed void. (See Stewart v. Severance, 43 Mo. 322.) [323] It was improper in the clerk to send out the original order of publication. He should have retained the original as evidence in: bis office. But there is no dispute about the order being made and published, and this was a substantial compliance with the. law. At all events, the plaintiff cannot take advantage of such.an error in a collateral proceeding like this. All courts of record having common-law jurisdiction have the' power to make entries nunc pro tunc, in furtherance of justice, of-such transactions as really took place, provided sufficient evidence appears of record to warrant the entries. In the case of Harris v. ‘ Grroner, it sufficiently appeara that a final judgment had been I’endered on the notes at the return term, and yet that final judgment had not been entered in form. Although the formal entry had not been made, it was nevertheless a real judgment on which the clerk might issue a special execution without waiting for the judgment to be entered in form nunc pro tunc. That being the case, the sheriff’s sale and deed were supported by a real' judgment, and the nunc pro tunc entry was only intended to furnish proper evidence of this fact. Sheriffs are always permitted to amend their returns to correspond with the facts as they really existed; and the courts will compel them to do so in support of sales on execution, at the instance of the purchaser. There was nothing, therefore, improper-in allowing the sheriff’s return to be amended in support of the execution sale. A sheriff, in conducting sales on special executions in attachment, must look to the general laws governing execution sales. ■ There is nothing in the attachment law on this subject, and we' cannot see the force of the objection that this execution had spent its force and was functus officio at the return term of the writ, when it appears that no court was held and no sale could take place at that time. Is there any reason why a special execution in attachment should not remain in force in like manner as general executions on general judgments in attachments, or in any other suits? We can see none, and therefore we think the ruling of the Circuit Court on this point was right. We pass the clerical misrecital in the sheriff’s deed of the time [324] when the execution was directed to him, as this is corrected by the other recitals and is of no consequence. The evidence offered to impeach the sheriff’s sale by showing that the defendant interfered and prevented others from bidding was not admissible in this kind of case. Where a stranger purchases lands at an execution sale, to impeach such sale there must be a direct proceeding by motion to set aside the sale, or, where a deed has been made, by an action in the nature of a bill in chancery. It cannot be done in an action of ejectment. (See Cooper v. Reynolds, 10 Wall. 308.) The same remark may be made in regard to the point raised and discussed with so much seal and ability by the counsel on both sides, as to the effect to be given to the order of publication against Groner, who, at the commencement of the suit, and during all the time it was pending, was within the military lines of the Confederate States. The question whether the amnesty granted by the President of the United States, which opened the Union lines for the return of rebels, could also open the rebel military lines so as to give efficacy to a publication of the notice against Groner., is too grave to be discussed by us when it does not arise upon the record. All that we could now say would be obiter dicta, and might hereafter embarrass the court if a proper case should arise for our adjudication. As there is nothing of the kind in the record of the case of Harris v. Groner, it cannot be considered collaterally in this ejectment. We therefore pass it with the observation that if Groner wishes to raise these issues he must do so by. some direct proceeding in the attachment, and perhaps he may do so by motion in the nature of a writ of error coram nobis; there being no statutory bar, as we now recollect, limiting the time when such motion may be made. (See Powell v. Gott, 13 Mo. 458; Ex parte Toney, 11 Mo. 661.) Upon the whole record as it stands before us, this judgment must be affirmed. The other judges concur.