Blackburn v. Jackson

• Decision Date: 31 January 1858
• Citation: 26 Mo. 308
• Parties: BLACKBURN, Respondent, v. JACKSON et al., Appellants.
• Court: Missouri Supreme Court

26 Mo. 308

BLACKBURN, Respondent,

v.JACKSON et al., Appellants.

Supreme Court of Missouri.

January Term, 1858.

1. A verbal acknowledgment or promise is insufficient to take a case out of the operation of the statute of limitations. (R. C. 1845, p. 720, § 13; R. C. 1855, p. 1052, § 12.)

2. In a suit on a judgment of a sister state the record showed that the writ of summons was returned “executed in full;” held, that there was prima facie evidence of jurisdiction of the person.

3. A formal levy of an execution alone, where the property levied upon is returned to the defendant, operates no extinguishment of a judgment.

Appeal from Lawrence Circuit Court.

This was an action commenced in April, 1851, against Alvah Jackson and John Spillman on two promissory notes dated January 1, 1840--one for $44, the other for $44.65--both payable one day after date. The plaintiff by an amended petition introduced another cause of action--a judgment rendered in the circuit court of Allen county, Kentucky, in May, 1839, for $253.93. This was a judgment by default, and was against William Coleman, Alvah Jackson and John Spillman. The return of the writ of summons in this case was thus: “Executed in full, May 3, 1839. [Signed] J. Thomas, D. S., for R. H. Paris, S. A. C.” There was no appearance of either of the defendants. An execution was issued upon this judgment and levied upon certain real estate of Coleman and Spillman, and certain personal property belonging to Spillman. The real estate was sold, but the personal property was returned “not sold for want of time.” A venditioni exponas was issued, of which the following return was made: “The property levied on was given up to the defendants and returned from this levy by order of the plaintiff. October 31, 1839.”

In the present suit, Alvah Jackson being a non-resident, there was publication as to him. Spillman having died, his administrator became a party to the suit. He pleaded nul tiel record as to the judgment sued on, and also that the release of the property levied upon in Kentucky operated a satisfaction of the judgment; also the statute of limitations as to the notes sued on. At the trial evidence was introduced in behalf of plaintiff to the effect that Spillman had agreed verbally with an agent of plaintiff in 1850 that if he (the agent) would wait and forbear to sue until he, Spillman, could go to Arkansas and see Jackson and return home, then he would pay the notes; that he did so wait and forbear to sue.

The court found for plaintiff and rendered judgment on the notes and on the judgment.

P. F. Wright, for appellants.

I. A levy on sufficient personal property to satisfy a judgment, though the execution be returned unsatisfied by direction of the plaintiff, extinguishes the judgment. (Jackson v. Bowen, 7 Cow. 13; Blair v. Caldwell, 3 Mo. 249; 4 Cowen, 417; Clark v. Withers, 1 Salk. 323.)

II. The court erred in permitting the record of the Kentucky judgment to be read. The return made is not even prima facie evidence of personal notice.

II. The court erred in permitting the parol promise of Spillman to be given in evidence. (R. C. 1855, p. 1052, sec. 12.)

Gardenhire, for respondent.

I. No exceptions were properly saved to the admission of evidence. The facts found warrant the judgment.

NAPTON, Judge, delivered the opinion of the court.

The statute of limitations having been pleaded, it was error in the court to permit the verbal promise of Spillman to...