Opinion
No. 28391.
November 20, 1951.
C. Arthur Anderson, John A. Eigel, St. Louis, for relator.
Henry G. Morris, Henry A. Freytag, St. Louis, for respondent.
This is an original proceeding to prohibit Honorable Amandus Brackman, Vacation Judge of the Circuit Court of St. Louis County, Division No. 2, and his successors from proceeding further in an equity suit pending in that division. Our preliminary writ of prohibition issued, the respondent filed his answer, the facts are conceded, and the question now to be determined is whether our preliminary writ is to be made absolute.
On April 9, 1951 relator Eleanor Mathas procured a divorce and an alimony judgment against John Mathas for $4,000. On the same day John Mathas filed a partition suit against Eleanor Mathas involving real estate in that county owned by the parties during their marriage as tenants by the entirety. On June 6, 1951, Eleanor Mathas caused a writ of execution to be issued under the alimony judgment and levied upon the individual interest of John Mathas in the real estate which was the subject-matter of the partition suit. The sheriff advertised the land for sale on August 13, 1951. On July 27, 1951, John Mathas filed suit in equity in the Circuit Court of St. Louis County, Division No. 2, against the sheriff to restrain and enjoin such execution sale on the ground that Eleanor Mathas was seeking to defraud him and to cause his interest in the property to be sold for a grossly inadequate and oppressive amount; that she intended to bid in the interest in the property of John Mathas for a nominal amount thereby becoming sole owner of property worth from $14,500 to $16,000; that because of the nature of her interest in the property the sale under execution would not attract competitive bidding and that little or nothing would be realized from that sale, thus leaving the greater portion of the $4,000 judgment unsatisfied; that there was a deed of trust on the property for approximately $6,500; that a suit for the partition of the property was pending in St. Louis County and set for trial on November 14, 1951; that in the partition sale in which the entire property would be sold legitimate bids would result in the sale of the property at its market value whereby the $4,000 judgment or the greater portion thereof would be satisfied; that if the property should be sold at such execution sale "an irreparable damage will be done to this plaintiff and a gross miscarriage of justice will result." On July 27, 1951, the court issued an order returnable August 7 for the defendants to show cause why a temporary injunction should not be granted. On the return day defendants filed a motion to dismiss and an answer and the order to show cause was continued until August 9. On that day the court heard and overruled the motion to dismiss and then proceeded to hear testimony in the course of which it was disclose that Dr. Curtis Lohr of the St. Louis County Hospital had written the Prosecuting Attorney of St. Louis County stating that John Mathas was of unsound mind and should be committed to an institution for treatment, and that on that very day steps had been taken to institute an inquiry into the sanity of John Mathas, whereupon the court, treating the testimony as a suggestion of the insanity of John Mathas, continued the hearing until August 13 to permit the filing of an information in the probate court to have John Mathas declared of unsound mind and stating if that was done the court would grant a temporary injunction staying the execution sale until a guardian could be appointed for the plaintiff. The petition for writ of prohibition was filed August 11 alleging that under these facts the circuit court in the equity case had no jurisdiction to grant a temporary injunction for the reason that the plaintiff has an adequate remedy at law under R.S.Mo. 1949, § 513.360 and that the trial court exceeded its jurisdiction in overruling the motion to dismiss for the reason that plaintiff has an adequate remedy at law; that there is no ground stated upon which equity could grant relief and that the petition in the equity case shows on its face that no cause of action exists against the sheriff and Eleanor Mathas. Our preliminary writ, issued on August 11, prohibited respondent from taking further action in the equity suit other than to issue an order restraining the sheriff from conducting the execution sale set for August 13. On August 22, 1951, John Mathas was adjudicated by the Probate Court of St. Louis County to be a person of unsound mind.
The trial court exceeded its jurisdiction in overruling the motion of the sheriff and Eleanor Mathas to dismiss the petition of John Mathas for an injunction, for the reason that John Mathas had a full, complete and adequate remedy at law, namely, a motion to quash, set aside or stay the execution of the alimony judgment under R.S.Mo. 1949, §§ 513.360 and 513.365, which provide:
513.360: "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."
513.365: "If it appear that such execution or order of sale ought to be stayed, set aside or quashed, and the petitioner enter into recognizance, with sufficient sureties, * * * then such judge shall make an order for the stay of the execution or order of sale, as aforesaid * * *."
In Jones v. Overall, 223 Mo.App. 266, 13 S.W.2d 581, we upheld the action of the trial court in dismissing a bill in equity to enjoin the enforcement of an execution, upon the ground that these sections provide an ample remedy at law for staying, setting aside or quashing an execution. Likewise, in Weniger v. Weniger, Mo.App., 32 S.W.2d 773, 774, we recognized the rule that a motion to quash is the proper remedy where an execution "is being executed in an irregular, oppressive, or fraudulent manner".
Respondent contends that §§ 513.360 and 513.365 are not the appropriate remedy except in cases where there is an infirmity or defect, actual or claimed, in the judgment, execution or levy, citing Farrell v. Kingshighway Bridge Co., Mo.App., 117 S.W.2d 693; Parks v. People's Bank, 97 Mo. 130, 11 S.W. 41; Cope v. Snider, 99 Mo.App. 496, 74 S.W. 10; and State, to the Use of Knapp, Stout Co. v. Finn, 19 Mo.App. 557.
The Knapp, Stout case holds that it is error to sustain a motion to quash an execution issued against four of five defendants, all of whom were appealing an adverse judgment, where those four defendants had not given a supersedeas bond.
In the Cope case the execution defendant filed a motion to quash the writ of execution which motion alleged no ground for quashing the execution. The court sua sponte made an order quashing the levy. This action was held improper because not based upon nor in conformity to the motion, the court stating the proposition that the judgment of a court must be based upon some pleading authorizing the judgment. Furthermore, the court found that there was no evidence offered tending to prove the grounds of the motion, which were (1) that defendant had conveyed to another the property levied upon and (2) that the property was exempt from execution.
In the Parks case it was held that an injunction will lie to restrain the sale of land under execution levied thereon where the equitable title to the land had been acquired by another prior to the rendition of the judgment, as against the contention that plaintiffs had an adequate remedy at law, namely, the interposition of an equitable defense to any ejectment suit which might subsequently be brought on the strength of the sheriff's deed under the judgment. There was no claim that the statutes now numbered 513.360 and 513.365 provided an adequate remedy at law. The decision was grounded upon the necessary exercise of the preventive jurisdiction of equity to avoid the casting of a cloud on plaintiffs' title, which is an undoubtedly sound reason to resort to equity in view of the statute now numbered 526.030, which specifically authorizes the remedy by writ of injunction "where a cloud would be put on the title of real estate being sold under an execution".
The Farrell case upheld the action of the trial court in overruling a motion to quash an execution and levy under a judgment where the allegation of the motion that the judgment had been fully satisfied was not sustained by the evidence, and under circumstances revealing that the motion was a collateral attack upon a judgment in a suit where the court had jurisdiction. It is true that in passing we said, 117 S.W.2d loc. cit. 696, "There is no infirmity or defect, actual or claimed, in the judgment, the execution or the levy, and, prima facie, a motion to quash the execution and the levy, or either of them, should not be sustained", but this language should not be interpreted to mean that it is a necessary prerequisite to the staying of an execution under §§ 513.360 and 513.365 that there be an infirmity or defect in the judgment, execution or levy. The sections of the statutes, supra, contain no such limiting language. They are broad, all inclusive, and by intendment authorize the court to act on any "good cause", legal or equitable, whereby the execution "ought to be stayed, quashed or set aside."
R.S.Mo. 1949, § 526.030 provides that "The remedy by writ of injunction * * * shall exist in all cases where a could would be put on the title of real estate being sold under an execution against a person, partnership or corporation having no interest in such real estate subject to execution at the time of sale, or an irreparable injury to real or personal property is threatened, and to prevent the doing of any legal wrong whatever, whenever in the opinion of the court an adequate remedy cannot be afforded by an action for damages."
§§ 513.360 and 513.365, supra, taken into consideration in conjunction with § 526.030, which specifies the only circumstances in which the remedy of injunction may be utilized to stop an execution sale, reveal the legislative intent to limit and restrict the use of injunctions in execution sales to the circumstances set forth in the statute and to require all other applications for the staying, setting aside or quashing of executions to be made by way of motion to quash under §§ 513.360 and 513.365.
Plaintiff's legal remedy was full, adequate and complete. The equity court had no jurisdiction. The issuance of our preliminary writ should be sustained for this reason alone. It is unnecessary to consider the remaining grounds relied upon by relator, namely, that the petition in the equity suit states no grounds upon which equity could grant relief and shows on its face that no cause of action exists against the defendants. It should be observed, however, that John Mathas in filing his partition suit was pursuing a remedy which the law afforded him for the enforcement of a legal right. Likewise, Eleanor Mathas, in suing out an execution on her alimony judgment, was pursuing a remedy which the law afforded her for the enforcement of a legal right. Should equity intervene when the rights of parties so employing lawful remedies collide? We think not, where, as in this case, as we have shown, John Mathas had an adequate remedy at law to avoid this collision by the filing of a motion to stay under § 513.360, supra.
In this situation our preliminary writ should be made absolute, and the Commissioner so recommends.
The foregoing opinion of HOUSER, C., is adopted as the opinion of the court.
The preliminary writ is, accordingly, made absolute.
BENNICK, P. J., and ANDERSON and RUDDY, JJ., concur.