Blandon v. Martin

50 Mo. App. 114, 1892 Mo. App. LEXIS 292

Opinion

Smith, P. J.

— The defendant Martin filed a motion in the court below to quash the levy of an execution on his alleged homestead, which was overruled, and from the judgment overruling the same the defendant has appealed.

The judgment must be affirmed for the reason that it does not appear from the record that either the execution or the levy thereon indorsed was introduced in evidence. The levy is not before us. It was the foundation of the defendant’s case. If it had no existence, there was nothing of which the defendant could complain. In absence of an admission by the other parties it was necessary for the defendant to prove the averment of such levy. No such proof was made. No court would be authorized to quash the levy of an execution, when, as in this case, the existence of such levy is not in some way shown. This is essential, and without it the defendant’s case is incomplete. He was, for that reason if for no other, not entitled to the relief demanded,

The judgment of the circuit court will be affirmed.

All concur.