Burton v. Deleplain

• Decision Date: 11 April 1887
• Citation: 25 Mo.App. 376
• Parties: CHARLES E. BURTON, BY NEXT FRIEND, Appellant, v. GEORGE DELEPLAIN ET AL., Respondents.
• Court: Kansas Court of Appeals

25 Mo.App. 376

CHARLES E. BURTON, BY NEXT FRIEND, Appellant, v. GEORGE DELEPLAIN ET AL., Respondents.

Court of Appeals of Missouri, Kansas City.

April 11, 1887

APPEAL from Dallas Circuit Court, HON. BEN. V. OLTRA, Judge.

Reversed and remanded.

The case is stated in the opinion.

T. M BROWN and AMOS M. SMITH, for the appellant.

I. The court erred in admitting in evidence the execution in case of Lathrop v. Burton & Mulkey. While the law may perpetuate the force of a judgment and execution until a sale can be made, if the levy has been made under the execution before the judgment expires the judgment having expired before the execution is delivered to the officer, and before a levy is made, the execution expires with the judgment, and the officer has no power to make a levy or sale under such judgment and execution. Durrett v. Hulse, 67 Mo. 201; Bank v Wills et al., 12 Mo. 361.

II. The court erred in refusing the instructions numbered three, four, five, six, seven, eight, nine and ten, asked by plaintiff, and in giving the instructions numbered one, two, three, four, five, six and seven, asked by defendant.

III. The court erred in overruling motion of plaintiff for new trial.

No brief for the respondents.

PHILIPS P. J.

Joseph Lathrop, on the twenty-eighth day of July, 1873, recovered judgment in the Bates county circuit court against Joel Burton. An execution on said judgment, bearing date July 14, 1883, was directed to the sheriff of Dallas county for execution. It was not received by the said sheriff, the defendant, Deleplain, until the twenty-second day of August, 1883, almost a month after the expiration of the ten years after the rendition of the judgment, within which ten years the statute permits the plaintiff to sue out an execution. This writ was levied, by the sheriff, on the first day of September, 1883, on the horse in controversy, as the property of said Joel Burton, which is claimed by the plaintiff, who sues the said sheriff and plaintiff in execution, in trespass. On the trial, the introduction of this writ in evidence by the defendants was objected to by the plaintiff, on the ground that it, in fact, was not issued within ten years after rendition of the judgment. His objection being overruled, and a judgment having been rendered for defendants, the plaintiff prosecutes this appeal.

I. The controlling question arising on the record before us is, was this execution, in contemplation of law, issued within the ten years after judgment rendered? If it was not, it is void, under the ruling of our supreme court, in George v. Middough (62 Mo. 549).

I am surprised not to find a question of so much practical importance, and one so likely to have arisen in the course of practice, definitely settled by the courts. At least, it seems to be a question res novo in this state, so far as I am advised.

What is the issuing of an execution? Is it sufficient for the clerk of the court to merely make out the writ in form, attach the seal of the court, and then stick it away in some pigeon hole, without delivering it to the plaintiff, or to the officer charged with its execution? If so, the writ may be made out by the clerk within the last hour of the ten years' time, laid aside by him in a private drawer or box, and any time afterward, during its life, say, five months after the expiration of the ten years, when the judgment itself would require judicial revival, send it out to the officer, who might then proceed to execute it. " Writs of execution are judicial writs, issuing out of the court where the record is, upon which they are grounded." Tidd's Pr. 994-5. Under the common law practice the execution received the teste of the court rendering the judgment, which then went to the prothonotary, if in the common pleas court, for his sealing. Tidd's Pr. 998-9.

For certain purposes, as in case of the death of the defendant after judgment, the teste of the writ before the death authorized the execution of it afterward; and, to save the rights of the plaintiff in execution, the courts, by the doctrine of relation, would permit the teste to be antedated. In such case the date of the teste was the initial period of the operation of the writ. So, in relation to the matter of issuing executions within a year and a day. If the writ was tested within the year and day, and actually delivered to the officer charged with its execution, and by him returned, it authorized another execution after the year and day. And, yet, under this rule, as applied in modern practice, a writ not actually tested on the day it goes out to the sheriff, can have no operation, by the fiction of relation, so as to authorize a levy against a defendant, dead at the time of the actual issuance. Holloway v. Johnson, 7 Ala. 660.

So, at common law, the writ from the date of the teste became a lien on the personal property of the defendant. But this whole doctrine was done away with, as an iniquity in practice, by act of parliament, and no such writs thereafter became liens until actually delivered to the sheriff. 29 Car. II, ch. 3, sect. 16. And this statute, in substance, has been generally followed in this country. It was long the statute of this state. And now the legislature has taken a step further, in this wise direction, by providing that no such writs shall be liens upon personal property until actually levied by the officer.

This policy of modern legislation should aid in ascertaining what the legislature meant by saying that an execution might issue within ten years after rendition of judgment.

The very term, " issuing out of a court," implies the sending out of the writ. Webster defines it thus: " To send out; to deliver by authority; as to issue an order from the department of war; to issue a writ or precept." Certainly...