Opinion
No. 28278.
July 3, 1951. Rehearing Denied September 7, 1951.
APPEAL FROM THE CAPE GIRARDEAU COURT OF COMMON PLEAS, J. HENRY CARUTHERS, J.
Von Mayes and Fred L. Henley, both of Caruthersville, for appellants.
Ward Reeves, of Caruthersville, for respondent.
This is an appeal from the order of the Cape Girardeau Court of Common Pleas overruling a motion to stay execution upon a judgment.
This case in which the judgment was rendered was an action in ejectment which was brought by the City of Caruthersville to recover possession of a certain strip of land alleged to be part of a public alley in said city but unlawfully withheld by defendants, W. L. Cantrell and Samuel Castleberry.
Originating in the Circuit Court of Pemiscot County, the case had been transferred on change of venue to the Cape Girardeau Court of Common Pleas.
Shortly after the change of venue was allowed, Cantrell and Castleberry instituted a suit to quiet title in the Circuit Court of Pemiscot County, naming as defendants the City of Caruthersville and the members of its city council. It is to be noted that the quiet title suit involved the same land as was involved in the action in ejectment, but with the positions of the respective parties reversed.
On motion of the City of Caruthersville and its codefendants the court entered an order dismissing and abating the quiet title suit upon the ground that Cantrell and Castleberry could not be permitted to prosecute such suit during the pendency of the action in ejectment, but were required, under the provisions of the new civil code, R.S.Mo. 1949, sec. 509.420, to assert the matters pleaded in their quiet title suit as a counterclaim in the action in ejectment. On appeal the Supreme Court held that the order dismissing and abating the quiet title suit was actually correct, but in view of the change brought about by its decision announced that the effect of its decision should be prospective only, and that the particular order should be reversed and the cause remanded. Cantrell v. City of Caruthersville, 359 Mo. 282, 221 S.W.2d 471.
Meanwhile there was a trial of the action in ejectment which resulted in the entry of a judgment that plaintiff city recover possession of the strip of land from defendants for use as a public alley, and that execution issue to restore to plaintiff the possession of the land. On appeal to this court the judgment was affirmed. City of Caruthersville v. Cantrell, Mo.App., 230 S.W.2d 160.
While the appeal in the action in ejectment was still pending in this court, and notwithstanding the fact that the judgment had been rendered in its favor, the City of Caruthersville elected to set up the identical cause of action which it had asserted in the ejectment suit as a counterclaim in the quiet title suit which the Supreme Court had theretofore remanded for trial.
After this court's affirmance of the judgment in the action in ejectment, and after the mandate had gone down, defendants filed a motion to stay execution upon the ground that inasmuch as the city had reasserted its cause of action as a counterclaim in the quiet title suit, the ultimate decision in such cause would finally adjudicate and determine all the rights of the respective parties, and would bar and supersede the inconclusive judgment which had been rendered in the action in ejectment.
The court overruled the motion to stay execution, whereupon defendants gave notice of appeal to the Supreme Court upon the theory that the case was one involving title to real estate. The Supreme Court found, however, that it was without jurisdiction, and sustained the city's motion that the cause be transferred here.
Whether or not a particular order is appealable is a matter with which the appellate court must invariably be concerned, even though the parties themselves may raise no question about it. Among the orders made appealable is "any special order after final judgment in the cause". R. S.Mo. 1949, § 512.020. It has been held that such provision refers to orders in special proceedings attacking or aiding the enforcement of the judgment. Wehrs v. Sullivan, Mo.Sup., 187 S.W. 825. A motion to stay execution is obviously one attacking the enforcement of the judgment, and as such the order which the court makes upon it is one from which an appeal will lie. In re Morrison's Estate, Mo.App., 17 S.W.2d 560.
It was no objection to the sufficiency of the motion in the instant case that it did not allege that an execution or writ of possession had either been issued or requested. This was not a motion to quash an execution, but to stay or forbid the issuance of an execution; and it was addressed to the inherent power of the court to control and regulate its own process in order to accomplish the ends of justice. 33 C.J.S., Executions, § 139; 21 Am.Jur., Executions, sec. 600. The judgment theretofore rendered had carried with it the right to the issuance of an execution or writ of possession; and the purpose of the motion was to have the court rule that by reason of something occurring subsequent to the rendition of the judgment, that is, the city's reassertion of its cause of action as a counterclaim in the quiet title suit, it would be unjust and inequitable to permit the judgment to remain subject to satisfaction.
Under the circumstances of this case we cannot escape the conclusion that the court should have sustained the motion to stay execution. This upon the theory that the city's reassertion of its cause of action as a counterclaim in the quiet title suit constituted an abandonment of the rights it had otherwise acquired in the judgment in the ejectment suit. Forsee v. Garrison, 208 Mo.App. 408, 235 S.W. 473. We can appreciate that the city may have had good reason for pursuing the course it elected to take, but pending final determination of the quiet title suit in which all question of its right to possession may be conclusively adjudicated under the issues as finally made up, the furtherance of justice would seem to dictate that there be no attempt at enforcement of the inconclusive judgment which had been rendered in the ejectment suit.
Incidentally our file discloses that since the taking of this appeal the quiet title suit had been tried to a conclusion, and has resulted in the entry of a judgment in all essential respects identical in terms with the judgment in the ejectment suit in so far as it establishes the city's right to an easement in the strip of land in question for use as a public alley. It also appears that an appeal from such judgment is now pending in the Supreme Court.
It follows from what has been said that the order overruling the motion to stay execution should be reversed and the cause remanded with directions to the lower court to enter an order sustaining such motion. It is so ordered.
ANDERSON, P. J., and McCULLEN, J., concur.