Briant v. Fudge

• Decision Date: 31 October 1876
• Citation: 63 Mo. 489
• Parties: A. C. BRIANT, Plaintiff in Error, v. JACOB FUDGE, et al., Defendants in Error.
• Court: Missouri Supreme Court

63 Mo. 489

A. C. BRIANT, Plaintiff in Error,

v.JACOB FUDGE, et al., Defendants in Error.

Supreme Court of Missouri.

October Term, 1876.

Error to Cass County Court.

Boggess & Cravens, for Plaintiff in Error, cited: Calloway vs. Nofing, 1 Mo. 223; Ex parte Toney, 11 Mo. 661; Powell vs. Got, 13 Mo. 458; Wagn. Stat. 919, § 19.)Hall & Given, for Defendants in Error.

NORTON, Judge, delivered the opinion of the court.

This suit was brought in the circuit court of Cass county, in March, 1872, to enforce the collection of two promissory notes executed by defendant to one Hays, as sheriff of Cass county. They were given in consideration of land sold by said sheriff, by virtue of a judgment of partition and order of sale. The notes were dated April, 1860, one of them payable in nine months, the other in twenty-one months from date, and each of them for the sum of $1,049.49.

It is alleged that Hays remained sheriff till some time in 1862; that in April, 1871, the undisposed of and unfinished business of the partition proceedings, out of which the notes in suit originated, was, by an order of the circuit court of Cass county, transferred to plaintiff, sheriff of said county, for completion.

The answer of defendant denied execution of the notes, alleged payment, and pleaded the statute of limitations in bar of the action.

The replication, in avoidance of the plea of the statute of limitations, alleged, that within ten years after the cause of action had accrued, suit had been brought on said notes in the circuit court of Cass county, and prosecuted to judgment, which, by an order of said court, was subsequently set aside and held for naught, because of improper service of the petition and writ on defendant Fudge, and that the present suit was instituted within one year after the avoidance of said judgment.

The facts disclosed in the record and bill of exceptions show that one of the notes sued on matured January 5th, 1861, and the other January 5th, 1862; that Hays, the sheriff who made the sale, ceased to be sheriff in 1862, and that in 1869 the unfinished business of the partition proceedings was ordered into the hands of Dale, who was sheriff at that time, and who instituted suit on said notes against the heirs of Bills, who was the purchaser of the land, and defendant Fudge, who was his security; that he obtained judgment against the defendants October 13, 1870, which, on the motion of Fudge, filed on the 9th of October, 1871, was, by the court below, on the 16th of July, 1872, set aside and held for naught, because there was no sufficient service of the writ on Fudge. It further appears, that in April, 1871, Dale having ceased to be sheriff, the matters uncompleted and relating to the partition proceedings were ordered into the hands of his successor, the plaintiff in this suit, and that the present action was instituted by him March 11th, 1872.

From this state of facts the question arises, whether, notwithstanding the lapse of ten years from the time the cause of action accrued and the institution of this suit, the action can be maintained under § 19, p. 919, Wagn. Stat. This is the only point presented for our consideration. The statute provides as follows:

“If any action shall have been commenced within the times respectively prescribed in this chapter, and the plaintiff therein suffer a non-suit, or after a verdict for him the judgment be arrested, or after a judgment for him the same be reversed, on appeal or writ of error, such plaintiff may commence a new action from time to time, within one year after such non-suit suffered or judgment arrested or reversed.”

It would seem to follow from the above that, on the arrest or reversal of the judgment rendered in the suit of Dale against the defendant, another suit might...