Sills v. Goodyear

88 Mo. App. 316, 1901 Mo. App. LEXIS 53

• Court: Missouri Court of Appeals
• Decided: April 1, 1901
• Status: Published

Opinion

BEOADBHS, J.

A writ of assistance is almost unknown in the practice of the courts of Missouri although it is in use in some of the States of the Union, notably: New Jersey, Kansas, Arkansas, Kentucky, and Illinois. It is defined as a “summary proceeding resorted to under the rules of chancery to give effect to a decree, and presupposes that the rights of the parties are only such as follow upon the decree.” Ain. and Eng. Ency. of Law (2 Ed.), vol. 3, p. 161; Adams’ Equity, p. 393.

And again: “A writ of assistance is the ordinary process used by a court of chancery to put a party, receiver, sequestrator, or other person, into possession when he is entitled thereto, either upon a decree or upon an interlocutory order.” 2 Ency. Plead, and Prac., 975. It “will issue only against parties to the suit, or their representatives, or those who come into possession under either of the parties while the suit is pending.” Idem., p. 979.

The findng of the court in this case was that Hanlon came into possession before the beginning of the suit, and that he was not a servant, tenant or agent of John Sills. See Ency. Plead, and Prac., 979, supra; St. Louis Railroad v. Ware, 135 Mo. 230. An examination of the evidence discloses that the court was justified in the conclusion arrived at, as stated in the findings.

We do not want to be understood as holding that a writ of assistance was the proper remedy in the case at bar; on the contrary, we hold that the writ of restitution, issued at the instance of the appellants, could have been made just as effective as the former writ. If Hanlon at the time was the tenant, agent or servant of Sills, the sheriff, under the writ, could have ousted him.

Affirmed.

All concur.