Allen v. Benton

• Decision Date: 31 October 1883
• Citation: 79 Mo. 165
• Parties: ALLEN v. BENTON, Appellant.
• Court: Missouri Supreme Court

79 Mo. 165

ALLEN

v.BENTON, Appellant.

Supreme Court of Missouri.

October Term, 1883.

Appeal from St. Louis Court of Appeals.

REVERSED.

J. M. & C. H. Krum for appellant.

Henry Hitchcock for respondent.

MARTIN, C.

This was a supplementary proceeding in favor of a judgment creditor of the Bellefontaine Railway Company by motion for an execution against the defendant as a stockholder in said company. The proceeding resulted in an order for an execution against the defendant in the sum of $2,474.81, from which the defendant appealed to the St. Louis court of appeals. The issues of law and fact, so far as the merits of the controversy are concerned, are identical with those in the case of Jerman's Adm'r v. Benton, which has been disposed of by us at this term. The only difference between the records of the two cases consists in the omission of the defendant to except to the action of the court in sustaining the motion for the execution. The court of appeals held that the motion did not constitute a distinct and independent proceeding, but that it had to be treated like any other motion made in a pending suit, and that unless the action of the court, in sustaining or overruling it, was excepted to, no error was saved for review in the appellate courts. The judgment for that reason alone was affirmed, while in the Jerman case it was reversed and remanded for error going to the merits of the suit. Gerard B. Allen & Co. v. Benton, 9 Mo. App. 579.

I am inclined to think that the court of appeals was right in holding that the motion did not technically constitute an independent proceeding, while it must be admitted that it is practically treated as such by the profession, and that it was so treated by the parties interested in its determination. Perhaps a lawsuit in its legal sense cannot be regarded as at an end until the judgment has been satisfied in court. And although supplementary proceedings on execution to a certain extent take the place of a suit in chancery, yet as the motion in this proceeding can be entertained only by the court rendering the judgment upon which the execution is asked, it is difficult to clothe it with all the attributes of an independent suit. Bronson v. Wilmington Life Ins. Co., 85 N. C. 411. But the court of appeals, having decided in the Jerman case that the facts which are identical with the facts of this record, did not under the law impose a double liability on the defendant as a stockholder, but only a liability for unpaid stock, erred in refusing to reverse the case--an error which appears of record, and was saved by exception to the action on the motion to set aside the final judgment or order appealed from. The action of the court in sustaining the motion for an execution accomplishes nothing unless it is succeeded by an order awarding the execution. The section contemplates a final order to that effect, and...