Christy v. Flanagan

• Decision Date: 06 November 1883
• Citation: 14 Mo.App. 253
• Parties: AMANDA E. CHRISTY, Appellant, v. FRANCIS G. FLANAGAN, Respondent.
• Court: Missouri Court of Appeals

14 Mo.App. 253

AMANDA E. CHRISTY, Appellant,

v.FRANCIS G. FLANAGAN, Respondent.

St. Louis Court of Appeals, Missouri.

Nov. 6, 1883.

APPEAL from the St. Louis Circuit Court, LUBKE, J.

Affirmed.

W. B. THOMPSON and JAMES TAUSSIG, for the appellant.

G. POLLARD, B. F. WEBSTER and R. J. DELANO, for the respondent.

BAKEWELL, J., delivered the opinion of the court.

This was ejectment. The answer was, not guilty. The cause was tried upon an agreed statement of facts which raised a single question of law. This was certified to the general term of the circuit court, which certified to the court in special term that the plaintiff is not entitled to judgment, and judgment for defendant was entered accordingly.

It appears that, on the 22d of November, 1875, The State to use of Amanda E. Christy, obtained judgment against Thomas Ryan in the St. Louis circuit court, the damages being assessed at $11,626. From this judgment, Ryan appealed to this court, and thence, to the supreme court, and gave bonds which operated as a supersedeas till the 2d of July, 1879. At the date of judgment in the circuit court Ryan was seized in fee of the premises described in the petition, which lie in the city of St. Louis. On the 19th of May, 1876, Ryan, for value, conveyed the premises to one Gibbons. And defendant holds title for value under Gibbons, and was in possession at the date of the suit. On the 19th of July, 1879, a fieri facias issued under the judgment against Ryan, which was levied on the 12th of September, 1879, on these premises. They were sold on the 7th of October, 1879, under this levy, and the sheriff's deed was executed and delivered to plaintiff on the 8th of December, 1877.

The question is this: Did the appeal extend the lien of the judgment beyond the three years limited by the statute?

The statute provides (Rev. Stats., sect. 2731), that: “The lien of a judgment or decree shall * * * commence on the day of the rendition of the judgment, and shall continue for three years, subject to be revived as hereinafter provided.”

Under the act of congress of the 4th of July, 1840, the liens of judgment rendered in the circuit and district courts of the United States, within each state, continue for the same period as the liens of judgments of the state courts.

The question came up squarely for decision in this court in Chouteau v. Nuckolls (20 Mo. 442). The United States had purchased under an execution of the 25th of August, 1847, issued upon a judgment of the United States circuit court of the 29th of April, 1843. Plaintiff had acquired from the United States; and defendant had, through mesne conveyances, acquired under Robertson, who purchased under execution dated September 10, 1844, issued on a judgment of the Warren circuit court rendered on the 22d of April, 1844. It was decided, that the lien of the judgment of the United States against Gratiot, the original owner of the land, was not extended by the appeal. Judge Scott says, in delivering the opinion of the court: “The lien of this judgment expired then in April, 1846, as, by our law, three years is the duration of the lien of a judgment. The pendency of a writ of error in the supreme court of the United States, on the judgment against Gratiot, did not affect the duration of the lien. The affirmance of that judgment would not prolong its existence, nor would the pendency of the writ continue the lien until the time of affirmance. This we consider plain from the words of the act creating the lien.”

The judgment against Gratiot was taken up for review by writ of error, and the judgment we are considering went up by appeal. But this is immaterial. Neither appeal nor writ of error work a supersedeas without a bond. Where there is a proper bond, there may be a supersedeas in either case.

It is suggested by counsel for appellant that it appears in Chouteau v. Nuckolls that there was no supersedeas,inasmuch as execution issued. We do not suppose that it would be contended that a mere appeal which operates no supersedeas ought to extend the lien. But a careful consideration of the statement and opinion in Chouteau v. Nuckolls shows that the execution against the Gratiot land issued on the 25th of August, 1847, three years and four months after the judgment, and that the execution issued on the 6th of August, 1846, in conformity with a special mandate of the supreme court of the United States. This does not tend to show that there was no supersedeas pending the appeal, but rather, that execution did not issue until judgment was rendered in the appellate court.

As to the...