Rusk v. Thompson , 170 Mo. App. 76 ( 1913 )

ELLISON, J.

Plaintiff is the public administrator of Harrison county and as such, under an order of the probate court of that county, he sold at public sale a certain tract of land to the defendant for the sum of thirteen hundred dollars. The sale was reported to the probate court and was approved. Af-terwards, at the same term, plaintiff filed a motion in that court to set the sale aside for nonpayment of the purchase price, and the court, by its order of record, did so. Plaintiff thereupon resold the land at public sale and it was bid in by a purchaser at eleven hundred and sixteen dollars. No notice of the filing of the application was given to defendant and he had no opportunity to be heard. This action was then brought against defendant for the difference between his bid at the first sale'and the price brought at the second sale. The judgment in the trial court was for the plaintiff.

These facts, we think, show plaintiff to be with-, out a right of action. In order to hold a purchaser for the difference between the price bid by him at a public judicial sale, and a less price subsequently obtained, on a resale occasioned by his not having paid his bid,the sale to him should be properly set aside and resale, ordered; and this would require that he be duly notified of the application and an opportunity thereby given him to be heard. It is true that by purchasing the property he became a party to the proceedings and would be chargeable with notice of the orders of the probate court in approving or disapproving the sale. But when, in this case, the sale was approved, defendant, as purchaser, became entitled to notice of the application to set it aside and order a new sale. A purchaser at sheriff’s sale must have notice of motion to set it aside. [Thomas v. Elliott, 215 Mo. 598, 602.] Defendant should have been notified of the time and place of the application, that he might have been heard in denial or explanation of the reasons given for setting the sale aside. [Greenwalt v. McClure, 7 Ill. App. 152; Morrison v. Burnette, 154 Fed. 617, 622, 17 Am. & Eng. Ency. Law (2 Ed.), 1026, 1027, 1028.]

Notice, it is said, “is of the essence of due process of law.” [Gardner v. Robertson, 208 Mo. l. c. 610.] “And though the statutes does not, in terms, require notice, the law will imply that notice was intended.”' [State ex rel. v. Walbridge, 119 Mo. 383, 394; Roberts v. St. Louis Imp. Co., 126 Mo. 460, 469.] “It is a cardinal principle that whenever a party’s rights are to be affected, by summary proceeding or motion in court, that party should be notified in order that he may appear for his own protection.” [State v. Biesmeyer, 136 Mo. App. 668; Konta v. Stock Exchange, 150 Mo. App. 617, 620.] This rule was applied to the action of a trial court in setting aside its order granting an appeal and thereafter acting on other motions in the absence of the appellant. [State v. Sutton, 232 Mo. 244.]

The wisdom of the foregoing law is made apparent by the evidence in this case. Evidence in defendant’s behalf tended to prove that he was ready and willing to pay his bid. There was a misunderstanding as to how the money was to be paid. He did not live at the county seat and had made arrangements for payment through others. Certainly the record discloses enough to make it reasonable to suppose that if he had been notified that an application had been filed to set aside the sale to him, he would have appeared with the money and demanded his deed. We-think that in the absence of proper notice, no right existed to dispose of the motion by setting aside the sale; and the judgment must therefore be reversed..

All concur.