Christy v. Flanagan

• Decision Date: 31 October 1885
• Citation: 87 Mo. 670
• Parties: CHRISTY, Appellant, v. FLANAGAN.
• Court: Missouri Supreme Court

87 Mo. 670

CHRISTY, Appellant,

v.FLANAGAN.

Supreme Court of Missouri.

October Term, 1885.

Appeal from St. Louis Court of Appeals.

AFFIRMED.

W. B. Thompson and James Taussig for appellant.

(1) An involuntary delay created by no act of plaintiff in the execution, cannot operate to deprive him of the lien of his judgment. Bank of Missouri v. Wells, 12 Mo. 361; Wood v. Messerly, 46 Mo. 255; Durrett v. Hulse, 67 Mo. 201; Riggs v. Goodrich, 74 Mo. 111. (2) While a judgment is superseded, the operation of the statute limiting the lien to three years is suspended, and that period of suspension is not to be reckoned in determining the time of expiration of the lien. (3) If the three years expire during the existence of the supersedeas, no scire facias is necessary to continue the force of the lien. A suspended judgment need not and cannot be revived by scire facias.

Garland Pollard for respondent.

The appeal and supersedeas did not extend the time of the judgment lien; it expired just as though no appeal had been taken. Chouteau v. Nuckolls, 20 Mo. 442.

NORTON, J.

It is conceded by counsel that the only question which the record in this case presents for determination is: Does an appeal taken from the judgment of the circuit court, where an appeal bond is given which operates as a supersedeas, have the effect of extending the lien of such judgment beyond the time preseribed by statute? It is also conceded that if this question is answered in the affirmative, that the judgment in the case ought to be reversed, and that if answered in the negative it ought to be affirmed. The question which the record propounds has been practically answered in the negative in the case of Chouteau v. Nuckolls, 20 Mo. 442, where it is held that the pendency of a writ of error prosecuted from a judgment, did not affect the duration of the judgment lien; that the affirmance of the judgment would not prolong its existence, nor would the pendency of the writ continue the lien until the time of affirmance, and that this was plain from the wording of the act creating the lien.

It is true as contended that it is not shown by the report of the case whether any bond or order operating as a supersedeas had been given or made, or anything to show that the plaintiff in the judgment could not have enforced his judgment by execution during the pendency of the writ; but this can make no difference inasmuch as the decision of the court was distinctly put upon the words of the statute. A judgment...