Barada v. Inhabitants of Carondelet

• Decision Date: 31 March 1852
• Citation: 16 Mo. 323
• Parties: BARADA, Appellant, v. INHABITANTS OF CARONDELET, Respondents.
• Court: Missouri Supreme Court

16 Mo. 323

BARADA, Appellant,

v.INHABITANTS OF CARONDELET, Respondents.

Supreme Court of Missouri.

March Term, 1852.

1. A. brought an action against B., to recover the proceeds of land sold as A.'s, on execution in favor of B., under a judgment, which, as A. claimed, B. had previously agreed to enter satisfied. Held, A. cannot maintain such an action, when he disclaims any title to the land sold, and admits on the trial that he has none.

2. Under the new code, a proceeding by mandamus cannot be joined with other actions.

3. Where a petition prays, among other things, for an injunction, but that branch of the petition is not passed upon by the court below, nor brought in any way to its notice, the Supreme Court will not interfere, as this would be an exercise of original jurisdiction.

Appeal from St. Louis Circuit Court.

On the 30th of September, 1842, the defendant recovered judgment against the plaintiff and his securities, Benoist Mareschal and George Shoults, for the sum of twelve hundred and five dollars and ninety-eight cents, together with the costs of the suit. On the 13th of September, 1845, the board of trustees of said town enacted an ordinance in words and figures, as follows, to-wit:

“No. 81. An ordinance for the relief of Benoist Mareschal, and the legal representatives of George Shoults' estate.

Be it ordained by the board of trustees of the town of Carondelet, as follows:

Section 1. That the chairman of the board be, and he is hereby, authorized and directed to ascertain the full amount of principal and interest remaining unpaid of the judgment which the inhabitants of the town of Carondelet obtained in the St. Louis Court of Common Pleas against Peter D. Barada and his securities, which judgment was appealed to the Supreme Court, and there affirmed; and having ascertained such amount, he shall, in the name of this corporation, enter upon the execution in said case, or upon the records of said court, as he may deem most effectual, a remittitur or satisfaction, to the amount of sixty per cent. upon the total amount of principal and interest of said judgment remaining unpaid. But no such remittitur or satisfaction shall be entered until the costs accrued upon such judgment in the Court of Common Pleas shall have been paid.

Section 2. Whenever such remittitur or satisfaction shall be so entered, the defendants in said judgment shall be allowed, for the payment of the balance, the term of four years, said balance to bear six per cent interest; but said defendants, or either of them, may, at any time before the lapse of said four years, pay and satisfy said balance, or any part thereof.

Section. 3. It shall be the duty of the chairman of the board to keep alive said judgment, as a lien upon the property of said defendants, and to revive said judgment under the laws of the state, from time to time, so as to preserve such lien upon the real estate of said defendants.”

The above ordinance took effect from and after the time of its passage. On the 19th of April, 1845, an execution was issued on said judgment, and on the 24th of May, 1845, and on the 7th of July, in the same year, the sheriff of St. Louis county, acting under and by virtue of said execution, sold enough of real and personal property of the plaintiff in this cause to pay said costs, and one hundred and twenty-two dollars and ninety-three cents of said judgment. The proceeds of said sale were in the hands of said sheriff at the time said ordinance was passed, and were in a few days thereafter (September 15th, 1845), applied by said sheriff to the payment of said costs, and the remainder was applied on said judgment. But the chairman of said board has ever since failed, neglected, and refused to enter said remittitur or satisfaction. On the 25th of November, 1845, the said Benoist Mareschal, in compliance with said ordinance, paid said corporation the sum of two hundred and ninety-seven dollars and ninety-nine cents, and obtained from said corporation a full discharge of all his indebtedness to said town, on account of said judgment. Before the passage of said ordinance, the said George Shoults died, without paying anything on said judgment. On the first of October, 1849, another execution was issued on said judgment, and on the 25th of February, 1850, the sheriff of said county sold real estate to the amount of six hundred and six dollars and sixty-four cents over and above costs, which said last sum was paid over by the sheriff to the corporation in a few days after said last sale. On the 28th of February, 1850, another execution was issued upon said judgment, and the sheriff, by virtue of a sale of real estate under said last execution, made the additional sum of one hundred and ten dollars, in addition to costs, which said last sum was also paid over by said sheriff to said corporation.

The plaintiff in this case brought suit under the new practice act, and asked judgment; first, to compel the chairman to enter said remittitur or satisfaction on the record of said judgment, according to the provisions of said ordinance; second, for an account between the parties of this suit, in order to ascertain how the matter stands between them; third, to compel said corporation to pay over to him (the plaintiff) the amount made on said executions, over and above what is necessary to satisfy said judgment; fourth, for whatever sums of money may be found justly due, after allowing all just credits; fifth, for damages sustained by the plaintiff on account of levying and selling under said executions, after said judgment, interest and costs were satisfied as aforesaid; sixth, to perpetually enjoin any further proceedings on said judgment by execution or otherwise; and, seventh, for such other and further relief as the court might think consistent with equity and good conscience.

The defendants in their answer state, in substance, that it is true that they recovered judgment as hereinbefore stated; that the board of trustees of said town did pass said ordinance, but that the same was passed on the application of Benoist Mareschal, and the legal representatives of George Shoults only, and for their benefit, and not with the intent of releasing the plaintiff from any part of said judgment; that, as far as said ordinance contains direction to the officers of said corporation, no person has acquired any rights under said ordinance until those directions are complied with; that Benoist Mareschal paid to said town the sum stated in said petition on said judgment, for which the collector of said town gave a receipt; that the plaintiff in this case, at the several times of the sheriff's sale on the last two executions, said and declared that he had no right, title or interest in the property offered for sale by the sheriff. When the case came on for trial, the plaintiff read in evidence the said judgment, and said executions, and the returns of the sheriff thereon, and offered to prove by two witnesses that said ordinance was made for the benefit of the plaintiff, as well as for the benefit of Benoist Mareschal and George Shoults' representatives; but the court refused to admit the testimony of said witnesses. The plaintiff admitted on trial that he had no right, title nor interest in the property sold under the last two executions, but was the owner of the property sold under the first execution. The defendants offered no evidence on the trial.

The defendants asked the court to give the following instructions, to-wit:

“1. That the ordinance set out in the petition was no discharge of the judgment, even if its tenor had been strictly complied with by the defendants in the judgment.

2. Said ordinance was no discharge of said judgment as to Barada, the principal defendant in said judgment, and present plaintiff.

3. If, in fact, the present plaintiff had no title, estate, interest, claim or demand in the property sold on the two last executions, and did, at the time of such sales, disclaim such title, etc., then said plaintiff cannot recover any money made by the sales of such property.

4. Under the facts stated and shown in evidence in this case by the plaintiff, the plaintiff is not entitled to recover in this action.”

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