Corby v. Tracy

• Decision Date: 31 May 1876
• Parties: AMANDA CORBY, Respondent, v. FRANK M. TRACY, Appellant.
• Court: Missouri Supreme Court

62 Mo. 511

AMANDA CORBY, Respondent,

v.FRANK M. TRACY, Appellant.

Supreme Court of Missouri.

May Term, 1876.

Appeal from Buchanan Circuit Court.

Doniphan & Reed, for Appellant.

I. The judgment was more than ten years old in October, 1871, and could only be revived by a suit at law, and no execution could issue, (Wagn. Stat., 791, § 11) and being in the circuit court, it was to be treated as a judgment of that court. (Baner vs. Bauer, 40 Mo., 61; King vs. Carpenter, 42 Mo., 219.)

B. R. Vineyard, for Respondent.

I. The motion to quash the execution not being a part of the record, and not being saved in the bill of exceptions, the Supreme Court will affirm the decision of the lower court. (State vs. Wall, 15 Mo., 208; London vs. King, 22 Mo., 336; Blount vs. Zink, 55 Mo., 455.)

II. This execution, being returned not satisfied, on that day, became functus officio, and being returned by the officer, no motion could, after that, be entertained to quash it.HOUGH, Judge, delivered the opinion of the court.

On the 30th day of August, 1860, a judgment was rendered by a justice of the peace of Buchanan county, in favor of John Corby, and against the defendant, Tracy. On the 26th day of October, 1871, and after the death of said Corby, a citation was issued by the justice, under the provisions of the 5th section of article 6. Wagn. Stat., relating to justice's courts, requiring the defendant to show cause why said judgment should not be revived in the name of the plaintiff as executrix of John Corby. The defendant appeared to the citation, and on the 8th day of November, 1871, said judgment was by the justice revived in the name of the plaintiff. A transcript of the judgment as revived was filed in the office of the clerk of the circuit court of Buchanan county on the 10th of March, 1873. Execution was issued thereon on the 13th day of July, 1874, and was on the same day levied on certain personal property of the defendant, for which a delivery bond was given. This execution was returned unsatisfied on the 7th day of September, 1874, the return day thereof, without any sale thereunder. On the 26th day of September, 1874, and during the term to which the execution was returnable, the defendant filed a motion to quash said execution, which was overruled, and he has brought the case here by appeal.

Passing by the question, whether the motion to quash was proper under the circumstances of this case, it having been made after the return of the execution, and omitting for the present any reference to another point, which is fatal to the defendant's case, we proceed to notice one objection made by him to the judgment of the court below, chiefly for the purpose of calling attention to the want of appropriate legislation on the subject.

It is contended by the defendant, that under the citation issued in favor of plaintiff, as executrix, in October, 1871, the judgment was not, and, being more than ten years old, could not have been, revived under the statute, and that no execution could have been legally issued thereon by the justice, or by the circuit clerk after the transcript was filed in his office.

It must be conceded, that the proceedings before the justice in October, 1871, would not have afforded sufficient authority to that officer for issuing an execution on the judgment in the name of the plaintiff, as more than three years had then elapsed since the rendition of the judgment; and the citation was not issued, nor were the proceedings thereunder had, with a view of reviving the judgment and having execution thereon as provided in sections seven, eight and nine of the act relating to justices' courts above cited. But the defendant is wrong in supposing that a judgment in a justice's court cannot be revived in the mode pointed out in the last named sections, after the lapse of ten years. That point was expressly de cided otherwise in the case of Humphreys vs. Lundy (37 Mo.,...