City of St. Louis v. Brooks

Black, J. This case is now before ns on the-appeal of Lydia C. Brown and her husband to review the action of the circuit court in setting aside an execution sale. The suit was instituted by the city of St. Louis-against John T. Brooks to enforce a special tax bill for $37.20, against a lot having a frontal of thirty-one feet, owned by Brooks. There was no personal service of process upon him, he being a non-resident, but he was duly notified by newspaper publication. Final judgment by default was entered in April, 1888, on which a special execution was issued, dated the fourteenth of June of that year, returnable to the following October term. The sheriff sold the property under this execution on the seventh of July, 1888, and Lydia C. Brown became the purchaser at the sum of $101. At the October term and on the first day thereof, Brooks appeared and moved to set aside the sale for the-following reasons : That he was a non-resident and had no actual notice, of the suit; that the property which was sold for $101 was reasonably worth $1,500; and because the sheriff’s advertisement of the sale was irregular in this, that he thereby stated that he would sell the property “by virtue and authority of a special execution on special tax Mil, issued from the office of the clerk of the circuit court,” etc., instead of saying he would sell the property by virtue of a special execution issued on a judgment, etc. Lydia 0. Brown and her husband were duly notified of the filing of the motion and appeared and resisted the same. The court on proof of the matters stated in the motion made an order on the twelfth of November that upon the payment of $101 and costs into court by Brooks, within ten days, for the use of Lydia C. Brown, the motion would be sustained. Brooks made a deposit of the money, and on the twentieth of the same month the court sustained the motion, and thereby set aside [383] the sale. No exceptions were taken or saved to either ■of these orders ; but within four days Mrs. Brown and her husband filed a motion to set aside the orders and for a rehearing, which motion was overruled at the following December term. The Browns then for the first time excepted and in due time perfected this ■appeal. It is insisted on behalf of Brooks that the rulings of the circuit court in setting aside the sale are not before this court for review, because no exceptions were taken at the time the rulings were made. To enable this court to review the decision of the trial court made during the progress of a cause two things are essential: First, exceptions must be taken at the time the rulings are made. They need not be then written out, but they must be noted at that time. Second, the attention of the court must be again called to them in a motion for a new trial. These familiar rules were applied to a motion to set aside an execution sale in the case of Bishop v. Ransom, 39 Mo. 417. But that case is in conflict with a prior case notthere noticed, and is in conflict with several subsequent cases, and is to be regarded as overruled. For all the purposes of a review in this court, the rulings of the trial court on motions made after final judgment stand on a different footing from those made during the progress of the cause. This court will review the action of the lower court on a motion to quash an execution, to pay over money on execution, to set aside a judgment for irregularity, to set aside an execution sale, and the like, though there is no motion for a rehearing or new trial. A motion for new trial is unnecessary in such cases. Bruce v. Vogel, 38 Mo. 101; Meek v. Hewitt, 48 Mo. 337; State v. Newkirk, 49 Mo. 472; Gale v. Michie, 47 Mo. 326; Slagel v. Murdock, 65 Mo. 522. A bill of exceptions may be taken upon the ruling upon such motions bringing upon the record the action ■of the court and the facts produced in evidence on the [384] hearing of the motion. The fact, however, that a motion for new trial is unnecessary does not dispense with the necessity of taking the exception at the proper-time. The exception must be taken at the time therulingcomplained of is made, the same as in other cases. This is the settled practice and ought not to be disturbed. It follows- that the point made ' in behalf of Brooks is-well taken. The circuit court has complete control over its own process, and may on motion filed at or before the return term of an execution set aside a sale made thereunder. McKee v. Logan, 82 Mo. 524; American Wine Co. v. Scholer, 85 Mo. 496. The circuit court, therefore, had the power and jurisdiction to set aside the sale in question, and, as no timely exception was taken to the order setting aside the sale, the judgment must be and is-affirmed. All concur.