State ex rel. Hagan v. Frazier

Black, J. This is a suit against Thomas J. Jones and his sureties on his official bond as sheriff to recover moneys due to James Hagan from a sale of real estate under partition proceedings in which Hagan was a party plaintiff. The suit was dismissed as to Jones because h.e could not be served with process. Defendants demurred to the plaintiff’s evidence and the only question in the case is whether the plaintiff made out a prima facie case by Ms proofs. The plaintiff read in evidence the record in the partition suit, from which it appears there was a finding of the interests of the parties, Hagan being the owner of the one half, and that partition in kind could not be made, followed by a judgment that partition be made; that the property be sold by the sheriff; and that, after the payment of the costs, he divide the proceeds among the parties according to their respective interests. The sheriff’s report shows that he sold the property and received the cash payment from the purchaser, pursuant to the terms of the order of sale. This report was duly approved by the court on the seventeenth of October, 1880. Evidence that at the time of the sale the sheriff defaulted and ran away was excluded. By this suit plaintiff seeks to recover one-half of the cash payment. The claim made here by the defendants that there was no order of distribution cannot be sustained. It is to be observed that the court, by the judgment that partition be made and to that end the property be sold, also directed a distribution of the proceeds according to the interests of the parties as found. On the approval of the sheriff’s report no further order of distribution was [595] necessary, and it became Ms duty, at once, to pay tbe proceeds, first deducting costs, to tbe parties entitled thereto. While plaintiff failed to show that the money had not been paid to him, still he made out a case. We held in State to use v. Schar et al., 50 Mo. 393, which was an action on a constable’s bond for failure to return an execution, that plaintiff made out a case by showing a judgment and that execution had been issued thereon. So where a levy of an execution and sale of property of a value equal to or greater than the amount of the execution is shown by the plaintiff, he thereby makes out a prima facie case against the constable and his sureties. State to use of Kelly v. Cobb et al., 64 Mo. 586. Applying the principle of these cases to the one in hand, it follows that the plaintiff made out a prima facie case, and the judgment is, therefore, affirmed. Henry, 0. J., absent. The other judges concur.