American Wine Co. v. Scholer

Pee Ctteiam.- The American Wine Company recovered judgment in the St.. Louis circuit court against Scholer, on the fourteenth of November, 1881, for $5,739.71. Execution was issued up'on this judgment, by virtue of which the sheriff levied upon three hundred and thirty-three shares of stock in the American Wine Company, as the property of Scholer, and on January 4, 1882, sold the same to Cook for ten dollars per share. On the return day of the execution, the defendant therein filed a motion to set aside the sale, which was sustained fey the court, and a venditioni exponas ordered. The plaintiff and Cook were duly notified of the motion to set aside the sale. They appealed from the order of the circuit court. The court of appeals affirmed the judgment, and they appealed to this court. ■ The evidence shows that the sale took place at ten o’clock a. m.; that defendant’s attorney had made inquiry at the sheriff’s office, and was told by a deputy in charge of the office, that the sale would not take place until twelve o’clock, and that he could rely upon that. Defendant desired to appeal from the judgment against him, and at ten o’clock on the day of sale went before the court, prepared to file his appeal bond, when he was notified the sale was then progressing. His attorney at once went out and found the sale had just been made. At ten o’clock a. m.,-Mr. Haeussler, in passing to the court room, found two deputy sheriffs selling the stock, when he remarked to them that it was not right to sell the stock at that hour, and that he was sure parties desired to be present who would not be there until twelve o’cLoek. He then passed on into the courthouse, and there met the sheriff and made substantially the same statement to the sheriff, coupled with a request to him to stop the sale. Within a few minutes, and before the sheriff received the money, and before he had taken any steps to transfer the stock, he was notified of what the deputy had said to the defendant’s attorney. The deputy [500] sheriff who cried the sale shows that the three hundred and thirty-three shares were sold in a lump, and that shares of stock were not usually sold at that hour. Other witnesses say there was a custom to sell at twelve-o’clock, and others say there was no such custom, so that the matter of custom may he left out of the case. The stock so sold at ten dollars per share was valued at seventy-five to one hundred dollars per share. The defendant was endeavoring to perfect Ms appeal from the judgment upon which the execution was issued,, and under such circumstances had a right to know from the sheriff at what hour he would make the sale, and had a right to rely upon such information when he received it. It appears he did so, and as a result three hundred and thirty-three shares, worth, at least, $20,000, were hastily sold in a lump for $3,330. That the plaintiff was misled, and a large amount of property sacrificed, is clear enough. We do not conclude that the sheriff intended to bring about such a result, but it did come about, from his design to sell at ten o’clock, and the assurance of the deputy that the sale would not be made until noontime, That the sale, under such circumstances, ought not to stand, when, as here, a timely application is made to vacate it, is too clear to admit of much argument. The court had complete control over its own process, and was possessed of ample powers to set aside the sale. Certainly so at or before return term of the writ. Ray v. Slobbs, 28 Mo. 35 ; Nelson v. Brown, 23 Mo. 13 ; Downing v. Still, Adm’r, 43 Mo. 321. Judgment affirmed.