Carpenter v. King

• Decision Date: 29 February 1868
• Citation: 42 Mo. 219
• Parties: WILLIAM CARPENTER, Respondent, v. THOMAS KING et al., Appellants.
• Court: Missouri Supreme Court

42 Mo. 219

WILLIAM CARPENTER, Respondent,

v.THOMAS KING et al., Appellants.

Supreme Court of Missouri.

February Term, 1868.

Appeal from Livingston Circuit Court.

This case came by appeal through the Fifth District Court.

Hall & Oliver, for appellant.

I. It is not necessary that a sheriff's deed should recite the issuing by the justice of an execution, and its return “no property found.” (Coons v. Munday, 3 Mo. 374; Murray v. Saxton, 15 Mo. 623; 13 U. S. Dig. 318, §§ 31, 32.)

II. The judgment in which the Circuit Court execution issued was not dormant at the time of the issue. When a transcript of a justice's judgment is filed in the clerk's office of the Circuit Court, it is to be carried into effect in the same manner as judgments of Circuit Courts, and a judgment of that court is carried into effect by an execution issued at any time within five years from and after its rendition. (R. C. 1855, p. 961, § 17; id. p. 904, § 12.) Moreover, the act of 1863 continues the lien of judgments for the period of five years from and after their rendition. (Adj. Sess. Acts 1863, p. 24.)

III. An execution on a dormant judgment is not a nullity. A sale under such a judgment can be attacked only in a direct proceeding, and will be treated as valid in an action of ejectment. (8 Johns. 304; 1 Cowan, 736-7; 16 Johns. 575; 1 Ind. 431; 2 Ind. 252; 2 Serg. &. R. 426; 17 id. 327; 4 Watts, 473; 4 How. 79; McLean's R. 338; Wright's R. 738; 8 Mo. 264; McNam. Null. 68.)Asper & Pollard, for respondent.

I. The sheriff's deed did not describe a judgment as rendered in any court known to the laws of this State. (Crittenden v. Leitensdorfer, 35 Mo. 239; Moreau v. Detchemendy, 18 Mo. 522.)

II. The judgment, at the time the execution was issued, was dormant and dead, and could give no legal vitality to the execution sale and proceedings of the sheriff; and the pretended deed was a nullity, as appeared on its face. It was presumed satisfied. (R. C. 1855, p. 902, §§ 3, 11; id. p. 951, § 6; id. p. 961, §§ 16, 17; Lackey v. Lubke, 36 Mo. 115; Weston v. Clark, 37 Mo. 568; 4 Wend. 474; Turner v. Keller, 38 Mo. 332; Lytle v. Cin. Man. Co., 4 Ohio, 466.)

III. The execution was on a judgment of the justice. Filing the judgment in the circuit clerk's office does not change the character of the judgment. It must be revived there. In a sale on such a judgment, it must be described as a sale on a justice's judgment. (R. C. 1855, p. 961, §§ 16, 17; Bennett v. Vinyard, 34 Mo. 217.) The judgment in this case is general, and regulated by the practice statute exclusively. (Bunding v. Miller, 10 Mo. 445; Blair v. Coppedge, 16 Mo. 495.)

IV. The writ was no protection, nor could it convey title, because it showed on its face that it was void. (Lackey v. Lubke, 36 Mo. 115.)

V. A dormant judgment is, to all intents and purposes, dead. It can give no vitality to executions issued upon it. (Norton v. Brown, 5 Ohio, 178; Hutchinson v. Hutchinson, 15 Ohio, 301.) It is presumed to have been satisfied. (Lytle v. Cin. Man. Co., 4 Ohio, 466; 2 Swan's Pr. 1003-4.)

WAGNER, Judge, delivered the opinion of the court.

The material question in the present case regards the proper construction to be placed upon the statutes in respect to transcripts issued from the judgments of justices of the peace, and filed in the office of the clerk of the Circuit Court.

The action was ejectment, brought in the Livingston Circuit Court, and the defendant relied for defense on a purchase of the premises made at sheriff's sale. The court, at the instance of the plaintiff, excluded the sheriff's deed, together with the execution issued from the clerk's office, and also the judgment and proceedings had before the justice of the peace.

From the record it appears that one Ashford Saxton, on the 26th day of May, 1860, recovered judgment against Carpenter, the plaintiff, before James May, a justice of the peace for Livingston county, for the sum of thirty - three dollars and twenty-five cents debt, and six dollars and seventy-five cents costs; that an execution was regularly issued on the judgment by the justice of the peace, directed to the constable, and by him returned “no property found;” and that afterward, on the 13th day of June, 1862, a transcript of the judgment was filed in the office of the clerk of the Circuit Court, and recorded and entered upon the docket of judgments and decrees; and that on the 10th day of December, 1863, execution issued from the clerk's office, by virtue of which the land was sold by the sheriff, under which sale the defendants claim the title. It is contended by the plaintiff's counsel that, under the provisions of the statute, the execution was issued by the clerk without authority, and in express violation of law, and that the purchaser at the sale took no title in consequence thereof. And this opinion seems to have been adopted by both the Circuit and District Courts. To support this view, section 6, p. 951, R. C. 1855, is cited, which provides, in reference to executions issued on justices' judgments, that neither the plaintiff nor his legal representatives shall, at any time after the expiration of three years from the rendition of a judgment by any justice of the peace, sue out an execution thereon, unless such judgment be revived in the manner directed in subsequent sections of the act. And it is insisted that this prohibition is absolute on all courts, and the filing of a transcript in the Circuit Court can make no difference as to prolonging the time.

By section 16, R. C. 1855, p. 961, provision is made for filing transcripts from justices' courts in the office of the clerk of the Circuit Court, and section 17 declares that every such judgment, from the time of filing the transcript, shall have the same lien on the real estate of the defendant in the county as is given to judgments of Circuit Courts, and shall be under the control of the court where the transcript is filed; may be revived and carried into effect in the same manner and with like effect as judgments of Circuit Courts, and executions issued thereon may be directed to and executed in any county in the State. Liens on judgments rendered in the Circuit Court, by the statute of 1855, continued for three years from the date of rendition, and the party in whose favor judgment was given might, at any time within five years after the entry of judgment, enforce the same by execution. It is apparent, we think, and such has always been the general opinion of the profession, that the provision of the statute which prohibited a party or his legal representatives from sueing out an execution upon a judgment of the justice's court after three years had elapsed, without having the same revived, referred exclusively to the issuing of executions by...