Section 2.5 Setting Aside or Quashing Execution
Library | Creditors' Remedies (2009 Ed. + 2014 Supp) |
D. (§2.5) Setting Aside or Quashing Execution
Generally, a judgment rendered by a court having jurisdiction of the parties and the subject matter is not open to collateral attack. Groh v. Groh, 910 S.W.2d 747 (Mo. App. W.D. 1995); Smith v. Smith, 797 S.W.2d 798 (Mo. App. E.D. 1990). A motion to quash does not reach alleged errors or irregularities before judgment and cannot be substituted for an appeal. First Nat'l Bank in Chester v. Conner, 485 S.W.2d 667, 671 (Mo. App. E.D. 1972). Defenses that might have been available in the original proceeding cannot be raised in a collateral proceeding such as a motion to quash execution. McConnell v. St. Louis County, 655 S.W.2d 654 (Mo. App. E.D. 1983).
When the record affirmatively discloses that the judgment is void, a motion to quash the execution is the proper remedy. Reis v. La Presto, 324 S.W.2d 648 (Mo. 1959). In State ex rel. County of Lincoln v. Elliott, 713 S.W.2d 515 (Mo. App. E.D. 1986), the court properly upheld an order quashing garnishment against a defense attorney held in contempt for failing to appear at a sentencing hearing. The defense attorney was incorrectly charged with direct criminal contempt instead of indirect criminal contempt. Direct criminal contempt requires notice and a hearing before a judgment of contempt and garnishment in aid of it could be issued. Therefore, the garnishment was quashed because the underlying judgment was void on its face. While the normal attack on execution is by motion to quash, that is not the exclusive remedy. An independent cause of action for wrongful execution or attachment exists in Missouri. Pourney v. Seabaugh, 604 S.W.2d 646 (Mo. App. E.D. 1980).
A motion to quash is the appropriate remedy if the judgment has been fully paid. Hedgecorth v. Hedgecorth, 463 S.W.2d 596 (Mo. App. E.D. 1971). The burden is on the judgment debtor when the motion to quash is based on the ground of payment. Bonadonna v. Bonadonna, 322 S.W.2d 925 (Mo. 1959). When an execution is for more than the judgment that the creditor is entitled to recover under the judgment actually rendered, the proper procedure is to move to quash the excess and to amend the execution. Hardin v. Hardin, 512 S.W.2d 851, 855 (Mo. App. W.D. 1974); Rehm v. Fishman, 395 S.W.2d 251 (Mo. App. E.D. 1965).
When there is insufficient time to have a hearing on a motion to quash before a scheduled sale or when the judgment debtor wants to avert a threatened levy under an execution in the sheriff's hands, §§...
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- Section 2.1 Introduction
- Section 2.2 Right to Execution
- Section 2.3 Issuance and Direction
- Section 2.4 Form of Request for Issuance of Execution
- Section 2.5 Setting Aside or Quashing Execution
- Section 2.6 Effect of Modification, Vacation, or Reversal of Judgment
- Section 2.7 How Made
- Section 2.8 Personal Property Exempt From Execution
- Section 2.9 Persons Entitled to Exemption Rights
- Section 2.10 Protection and Enforcement of Exemption Rights
- Section 2.11 Form of Notice of Exemptions
- Section 2.12 Claim of Exemption as Head of a Family
- Section 2.13 Delivery Bond
- Section 2.14 Time, Place, and Manner of Sale
- Section 2.15 Form of Notice of Sheriff's Sale
- Section 2.16 Procedure to Assert
- Section 2.17 Form of Notice of Third-Party Claim
- Section 2.18 Generally
- Section 2.19 Priority Between Judgment Creditors
- Section 2.20 Federal Tax Liens
- Section 2.21 What Constitutes a Levy of Real Property
- Section 2.22 Form of Notice of Levy
- Section 2.23 Notice of Issuance of Execution
- Section 2.24 Real Property Exempt From Execution
- Section 2.25 Persons Entitled to Exemption Rights
- Section 2.26 Protection and Enforcement of Exemption Rights
- Section 2.27 Setting Off the Exempt Homestead and Sale of the Surplus
- Section 2.28 Fraudulently Conveyed Property
- Section 2.29 Sale
- Section 2.30 Generally
- Section 2.31 Priority Between Holders of Deeds of Trust
- Section 2.32 Priority Between Judgment Creditors
- Section 2.33 Federal Tax Liens
- Section 2.34 Execution for Possession of Real Property—Writs of Restitution and Possession
- Section 2.35 Judgment Debtor Examination
- Section 2.36 Use Immunity
- Section 2.37 Discovery in Aid of Execution
- Section 2.38 Application of Missouri Law to Discovery Process in Federal Courts Located in Missouri (New Section)
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