State ex rel. Festor v. Staed

G-anti, P. J. This is an action on the official bond of the sheriff of the city of St. Louis to the use of relators for failure to execute a writ of restitution and for false return and failure to make return as to judgment for costs. Judgment was obtained by plaintiffs in the circuit court of the city of St. Louis for the penalty of the bond to be satisfied by the damages assessed at $230.40 on first breach, one cent on second and one cent of the third breach. An appeal was prosecuted to the St. Louis Court of Appeals and the judgment of the circuit court was reversed and the cause remanded by a majority of the judges of that court, Judge Rombaueb dissenting. By reason of his dissent the cause was ordered certified to this court. On the trial in the circuit court, a, jury was waived and the cause submitted to Judge Jacob Klein, one of the judges of said court, who rendered judgment for plaintiffs. This is an appeal in an action at law. The finding of facts where there is substantial evidence upon which to base it, is conclusive upon this court. In rendering his judgment Judge Klein filed the following opinion in writing: [251] “In a suit between the relators and one Anton Meglitsch they recovered judgment, upon which a writ of possession was issued out of this court against said Anton Meglitsch, commanding the sheriff that without delay he cause to be delivered to the relators the possession of an undivided four fifths of certain real estate. The sheriff made return that on the 22nd of August, 1893, he executed the writ by offering to the plaintiffs therein named an undivided four fifths of the realty within described, which they refused to accept. This is an action on the sheriff’s bond for failure to execute the writ, for making a false return and for failure to make the costs and to make any return in relation thereto., It appears that Anton Meglitsch was in possession of the property at the time the writ of ejectment was issued and that he continued in the possession thereof undisturbed by the sheriff up to the time of this action. The sole difficulty in the matter grows out of the fact that the infant of Anton Meglitsch, viz., George Meglitsch, a boy four years old, is living with his father in the premises, and that the boy is the owner of the other undivided one fifth in said premises and as such co-owner is entitled to possession also. There is no room for doubt under the evidence that the sheriff refused to oust Anton Meglitsch under the writ and that the only manner in which he offered to put the relators into possession was byword of mouth, leaving Anton Meglitsch undisturbed. The ground upon which the sheriff acted (and he seems to have acted in good faith upon the advice of his counsel) was that inasmuch as George Meglitsch was in possession and was an infant of tender years, he had a right to have with him his father and that therefore the sheriff could not physically oust Anton Meglitsch or his furniture from the premises. This contention arose upon a misapprehension of the true situation. The posses [252] sion of Anton Meglitsch was adverse at the time of the decree and of the issuance of the writ, to the relators as well as to his own son. He had been contending that the property was his own. The character of this possession was never changed. He remained there after the writ was issued in just the same manner as before. He was not living with his son, but his son was living with him. The estate of the son was not derived from the father, and he had not, so far as the evidence shows, given bond or qualified himself to act as guardian or curator of the estate of the child as required by R. S. 1889, sec. 5279. It can not be said, therefore, that his possession was the possession of the child, and it is clear that the fact that the child was living with his father in the premises did not change the character of the father’s original possession. We have nothing to do here with the domestic relations between the father and the child. The child being a minor could not claim possession for himself, and the father had no legal right to hold possession for the child until he qualified as curator. It was therefore the sheriff’s duty to oust Anton Meglitsch from the premises, leaving the right of the minor to be protected in a proper proceeding, if they should be disturbed by any act of the relators as tenants in common. Having failed to perform this duty he is liable to respond.” This exceedingly clear and succinct statement of the law of the case was considered by the majority of the St. Louis Court of Appeals to be in conflict with Gray v. Givens, 26 Mo. 303. We do not concur in that view. We agree with Judge Klein and Judge Rom-BA.UER that the judgment of the circuit court awarding the writ of restitution was in strict compliance with Gray v. Givens and in harmony with the settled doctrine in this court. It is evident the sheriff undertook to reverse the judgment of restitution instead of obey [253] ing the writ. His plain duty was to remove Anton Meglitseh and his furniture and chattels out of the property and place relators in the actual not a mere constructive possession of the premises. No issue was raised in the ejectment case as to the right of Anton to remain in possession in right of his minor son, George. He was not there by virtue of such a claim. The circuit court found and decreed that he was attempting to defraud George along with the other heirs. Having been detected.in that wrong he can not use his fraudulent possession which he still retains as a pretense for protecting George’s interest. It was Anton that the sheriff was ordered to oust. The judgment of the St. Louis Court of Appeals is reversed and the judgment of the circuit court is affirmed. Sherwood and Burgess, JJ., concur.