Bauer v. Bauer

40 Mo. 61

• Court: Supreme Court of Missouri
• Decided: March 15, 1867
• Status: Published

Opinion

Holmes, Judge,

delivered the opinion of the court.

It appears that an execution had been issued from the clerk’s office of the St. Louis Land Court upon a transcript of a judgment before a justice of the peace, filed therein, and that upon motion the Land Court recalled the execution and set aside the judgment of the justice. It further appears by he bill of exceptions that this judgment was rendered against Catherine Bauer, in a suit by Ignatz Bauer against Jacob Bauer and Catherine his wife, upon a note executed by her while a married woman, and that she was “possessed in her own right in fee” of certain land described. It seems to have been supposed that this gave her a separate estate in respect of this property, and that her note was valid as made in respect of her separate estate. This was altogether a mistake ; no separate estate was thereby created. Her note was void for want of capacity to make it. The judgment was irregular, if not absolutely void.

The statute provides that such judgments, from the time of filing the transcript, “ shall be under the control of the court where the transcript is filed ; may be revived and carried into effect in the same manner, and with like effect, as judgments of Circuit Courts”—R. C. 1855, p. 961, § 19. We think the Land Court had jurisdiction not only to recall the execution, but to set aside the judgment, and that the action of the court upon the motion was entirely correct and proper.

Judgment affirmed;

the other judges concur.