Durham v. Darby

Supreme Court of Missouri

Durham v. Darby

34 Mo. 447

CourtSupreme Court of Missouri

DecidedMarch 15, 1864

StatusPublished

Cited by7 cases

This text of 34 Mo. 447 (Durham v. Darby) is published on Counsel Stack Legal Research, covering Supreme Court of Missouri primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Durham v. Darby, 34 Mo. 447 (Mo. 1864).

Pincite

Opinion

Bates, Judge,

delivered the opinion of the court.

This was a suit for partition of land. At the March term, 1859, of the St. Louis Land Court, judgment was given determining the rights of the parties, and, as partition in kind of the land could not be made without great prejudice to the owners, ordering a sale of the property without the appointment of commissioners.

At the subsequent October term of the court, the sheriff made a report of his sale of the property, which was confirmed by the court. The defendant moved the court to set aside the report of sale and the judgment of partition ; which motion was overruled, and the defendant appealed to this Court.

[448]*448The appeal was taken too late. The judgment at the March term, when the order of sale of the property was made, was the final judgment from which tire appeal should have been taken. (R. C. 1855, p. 1122, § 68.) There remained, then, nothing for the court to do in order to perfect the judgment. The statute does not require any action of the court upon the sheriff’s report of sale, though of course the proper execution of the order of sale is under the control of the court, in like manner as it may control the execution of other orders; and if the court should err in its orders as to the execution of the order of sale, an appeal would lie to this court for the correction of such error. But the present caso is intended to reverse the judgment rendered at the March term, and the appeal from that judgment was taken too late.

Appeal dismissed.

Judges Bay and Dryden concur.

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Bates, Judge,

delivered the opinion of the court.

This was a suit for partition of land. At the March term, 1859, of the St. Louis Land Court, judgment was given determining the rights of the parties, and, as partition in kind of the land could not be made without great prejudice to the owners, ordering a sale of the property without the appointment of commissioners.

At the subsequent October term of the court, the sheriff made a report of his sale of the property, which was confirmed by the court. The defendant moved the court to set aside the report of sale and the judgment of partition ; which motion was overruled, and the defendant appealed to this Court.

[448]*448The appeal was taken too late. The judgment at the March term, when the order of sale of the property was made, was the final judgment from which tire appeal should have been taken. (R. C. 1855, p. 1122, § 68.) There remained, then, nothing for the court to do in order to perfect the judgment. The statute does not require any action of the court upon the sheriff’s report of sale, though of course the proper execution of the order of sale is under the control of the court, in like manner as it may control the execution of other orders; and if the court should err in its orders as to the execution of the order of sale, an appeal would lie to this court for the correction of such error. But the present caso is intended to reverse the judgment rendered at the March term, and the appeal from that judgment was taken too late.

Appeal dismissed.

Judges Bay and Dryden concur.

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Bluebook (online)

34 Mo. 447, Counsel Stack Legal Research, https://law.counselstack.com/opinion/durham-v-darby-mo-1864.

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