Nelson v. Nelson , 302 Mo. 440 ( 1924 )

This case has been re-assigned. This is an appeal by John M. Nelson from an order overruling his motion to quash a general execution issued against James Andrew Nelson in a divorce case in which Oliver May Nelson was plaintiff and James Andrew Nelson was defendant. Judgment therein in 1903. Movent was not a party. In his motion he first alleges that he owns and for years has owned certain described realty, and that the sheriff has "under a pretended execution" levied thereon and advertised it for sale. He then moves to quash the execution on the grounds: (1) That plaintiff in the divorce suit "never obtained judgment for alimony in said cause;" (2) that no judgment of revivor was ever obtained, "and, therefore, no judgment was ever entered upon which a valid execution could be issued;" (3) that the (modified) judgment upon which the execution is founded is void, because there was no jurisdiction to enter it; (4) that the execution states "no sum covering the debt and is so indefinite and unintelligible as to be impossible to enforce."

The general rule (unless changed by statute) is that a stranger to a judgment has no standing to move to quash an execution thereon, save in special circumstances of whose existence in this case there is no claim. Appellant does not deny the prevalence of this rule, nor that it was formerly the rule in Missouri, as this court has several times held, but he bases his claim to a right to move to quash upon Sections 1675, 1676, 1677, Revised Statutes 1919, which he contends have changed the law on the subject. These sections in their main substance have been in force many years. Prior to 1879, Section 1675 was, in terms, applicable solely to one "against whom any execution shall be issued." It is not claimed this language could have included a stranger to the judgment. With the statute in question in this form this court consistently applied the general rule that a stranger could not move to quash. In 1879 the sections were amended and took their present form. The only change which is relied on to sustain appellant's present contention is that which makes the statute applicable to "any person against whose property any execution . . . shall be issued." After this amendment, this court (State ex rel. Carter v. Clymer,81 Mo. 122), without mentioning the statute, denied the right of a stranger to the judgment and execution to move to quash. The reason for the court's action in ignoring the statute in the case last cited appears from the statute itself. The statute has nothing to do with the question whether one has or has not the right to move to quash in a particular case. Sections 1675, 1676, and 1677, Revised Statutes 1919, read as follows:

"Sec. 1675. Proceedings to set aside or quash execution. If any person against whose property any execution or order of sale shall be issued apply to any judge of the court out of which the same may have been issued, by petition, verified by oath or affirmation, setting forth good cause why same ought to be stayed, set aside or quashed, reasonable notice of such intended application being previously given to the opposite party, his attorney of record or agent, such judge shall thereupon hear the complaint.

"Sec. 1676. Judge to order stay of execution, when and how. If it appear that such execution or order of sale ought to be stayed, set aside or quashed, and the petition enter into recognizance, with sufficient sureties, in such sum as shall be reasonable, to be taken and approved by such judge, conditioned that if such application be finally determined against such petitioner he will pay the debt, damages and costs, or damages and costs, to be recovered by such execution or order of sale, or render in execution all his property liable to be seized and taken or sold, by such writ or order of sale, or that the sureties will do it for him, then such judge shall make an order for the stay of the execution or order of sale, as aforesaid; but all the property, real and personal, bound by such execution or order of sale, shall remain bound as if no such stay had been granted."

"Sec. 1677. Judge to certify and return the petition to thecourt — proceedings. The judge shall return such petition and proceedings thereon, duly certified, to the court out of which the execution was issued, or order of sale is made returnable, and the clerk of such court shall enter the same upon his motion docket; and the court shall hear and determine the same in a summary way, according to right and justice, and may award a perpetual stay of such execution or order of sale, or may order the execution or order of sale to be enforced."

The purpose and effect of the sections (1675, 1676, 1677) were not affected by the amendment of 1879 except to change or enlarge the class whose members might proceed under them. In 1869 (Parker v. Railroad, 44 Mo. l.c. 419) this court held that the effect of this statute was, simply, to give one within its terms "the privilege of applying to a judge in vacation or at chambers, and procuring a preliminary or interlocutory order for the stay of an execution upon certain terms. The order made by the judge is not final; but his action and proceedings are certified to the court, for hearing, and judgment, in term time. . . . This statute enacts a means by which a party may take the initiatory steps in vacation to have the further proceedings on an execution stayed till he can be heard in court as to whether it should be set aside or quashed."

In Heuring v. Williams, 65 Mo. l.c. 447, 448, the court says: "The purpose of the statute was . . . to give the defendant in the execution the privilege of applying to the judge at chambers, or in vacation for an order staying the execution until he can be heard in court as to whether it should be set aside or quashed."

It is plain from the statutory language that the construction given it in the cited cases is correct. It is clear that these sections, as they stood prior to 1879, (1) did not apply to strangers to the action, and (2) did not give the execution defendant or any one else any new grounds for quashing an execution. They simply provided a means whereby the execution defendant, on stated conditions, in vacation or recess, might stay proceedings on execution until his motion could be heard in court. If he had no valid grounds for his motion, these sections gave him none. The right to have his motion sustained, when it came on to be heard in court, was in no way strengthened or weakened by the statutes in question. It depended, not on the statutes — for they had served their purpose in getting movent a hearing in court — but upon the general law respecting the quashing of executions, which was not affected by the statutes in any way. That is what the statutes mean (Section 1677) and that is the construction given by this court prior to 1879 in the cases cited. The amendment of 1879 merely made the sections mentioned available to "any person against whose property an execution" has been issued. It changes the description of those who are permitted to apply for a stay under Section 1675. It does not change the purpose of the sections in so far as it relates to what may be done under them. No matter who can proceed under the sections, they in no way purport to furnish him grounds for quashing an execution which he did not theretofore have under the general law. They still provide, simply and only, a method whereby one who has grounds for "quashing, staying or setting aside" an execution or order of sale may postpone proceedings on such execution or order of sale until his motion can be heard in open court. When the motion comes up in court, the question whether the execution should be quashed must be determined by the law in force — which law the statutes do not purport to change or affect. Under that law one in appellant's position has no grounds upon which he can successfully move to quash, and the statutes give him none and the statutory argument is the only one he advances in support of his claim to a right to move to quash.

It may be added that under the general law applicable to motions to quash there are those who are strangers or apparent strangers to the action who, in exceptional circumstances, may move to quash an execution. While plaintiff is not and does not claim to be in this class, yet the fact that there is such a class doubtless explains the amendment of 1879. Its purpose was to permit others who had a right under the law to be heard on motion to quash to avail themselves of the proceeding under Sections 1675, 1676, 1677.

Another thing: Appellant did not attempt to proceed under the statutes he now invokes. He simply appeared and filed in court a motion to quash a general execution issued against James Andrew Nelson in the divorce case of Olive v. James Andrew. Nor was the execution issued against his property.

The Brubaker Case is not in point. State ex rel. Fabrico v. Johnson, 239 S.W. 844, is an unusual case in its facts. The paragraph of the opinion relied on by appellant here is frankly stated therein to be outside the decision.

This judgment is affirmed. All concur, except Woodson, C.J., and Graves, J., who dissent; Woodson, C.J., in separate opinion.