City of Warrensburg v. Simpson

• Citation: 22 Mo.App. 695
• Parties: CITY OF WARRENSBURG, Respondent, v. ROBERT SIMPSON ET AL. Appellant.
• Decision Date: 28 June 1886
• Court: Court of Appeals of Kansas

22 Mo.App. 695

CITY OF WARRENSBURG, Respondent, v. ROBERT SIMPSON ET AL. Appellant.

Court of Appeals of Missouri, Kansas City.

June 28, 1886

APPEAL from Johnson Criminal Court, HON. JOHN E. RYLAND, Judge.

Affirmed.

Statement of case by the court.

Robert Simpson was convicted before the mayor of Warrensburg and fined one dollar and costs. From this conviction he appealed to the Johnson county criminal court, and gave his co-defendants R. M. Robertson and Adolph Spiess, as sureties. On a trial anew, in the appellate court, he was again convicted and fined five dollars and costs. On motion of the prosecuting attorney of the city, the court ordered the clerk to issue an execution in term time, on this judgment against defendant Simpson and his sureties, which was done. Under this execution the sheriff made what he called a levy on the property of defendant Robertson. He never took posseesion of the property nor exercised any acts of ownership over it. He says " I did not remove the property from Robertson's office. I told Robertson the levy was not good until I moved the property or took a delivery bond neither of which was ever done. I didn't take the property out of Robertson's possession." During the term at which it was issued, the court, of its own motion recalled this first execution on account of some irregularity in it. When this execution was recalled the sheriff left the property in Robertson's possession. At the time the court called in the first execution, it made an order for an alias, or capias execution, to issue under section 2064, Revised Statutes. This execution was duly issued, and, under it, the sheriff made the levy under consideration. In taxing costs the clerk taxed in favor of the city attorney the two dollars and fifty cents allowed for a conviction before the mayor, and also five dollars, allowed by the ordinance of 1874, for a conviction in the appellate court. Defendants applied to the court in vacation and obtained a stay of this execution until the May term, 1885 of the court below, at which time the stay was set aside on motion of plaintiff's attorney. Defendants never made any motion to re-tax the costs. At the time Warrensburg became a city of the fourth class, there was an ordinance in force allowing the city attorney a fee of five dollars on a conviction in case of an appeal from the mayor's court which has never been expressly repealed. After it became a city of the fourth class, an ordinance was passed allowing the city attorney a fee of two dollars and fifty cents for a conviction before the mayor.

The second execution, now sought to be quashed, was issued at the instance of plaintiff, but before its issuance defendant appears to have been confined in jail, yet the first execution under which he was confined, if he was confined under any process, was only an ordinary fieri facias; for the order of court calling it in so terms it and orders a capias execution. The capias execution, now under consideration, commanded the goods and chattels of defendant Simpson to be first taken, if sufficient could be found, and if not, then the goods and chattels of the defendant's sureties, and if no property could be found of either Simpson or his sureties, then Simpson was to be confined in jail. Under this last execution the sheriff levied upon personal property of one of defendant's sureties, and, as before stated, the defendants obtained a stay thereof by order of the judge, under sections 2405 and 2406, Revised Statutes, which stay was set aside and defendants appeal.

SAMUEL P. SPARKS, for the appellant.

I. The second execution was void, because the proceeding had under the first execution was a satisfaction of the judgment; first, by taking the body of defendant and confining him in jail; second, by levying upon sufficient personal property of defendant Robertson to satisfy same. Blair v. Caldwell, 3 Mo. 354; Moss v. Craft, 10 Mo. 720; Thomas v. Cleveland, 33 Mo. 126; State ex rel. Colvin v. Six, 80 Mo. 61; Freeman on Judgments, sect. 475; Herman on Ex., sect. 176.

II. Plaintiff, after defendant Simpson had been imprisoned and sufficient personal property levied upon, of its own motion, voluntarily caused Simpson to be discharged and the levy released by causing the execution to be quashed. This was satisfaction, in law, of the judgment. State ex rel. Colvin v. Six, supra. Nor can plaintiff be heard to say that there was no levy on the personal property of Robertson, because the officer did not see fit to take it in his manual possession. Anthony v. Bartholow, 69 Mo. 186. And the return of the sheriff on the first execution cannot be contradicted, nor collaterally assailed. It is binding and conclusive on the parties to the execution, except in an action upon the bond of the sheriff for a false return. Anthony case, supra.

III. The taxing of fees in favor of the city attorney was unauthorized and erroneous. He was only entitled to one-third of the amount taxed by the present ordinances. Ordinances, 1874, ch. 1, sects. 6 and 7.

JOHN M. CRUTCHFIELD, for the respondent.

I. A levy of an execution upon personal property, if the property be restored to the defendant, is not a satisfaction of the judgment. See authorities cited by appellant...