D. C. Wise Coal Co. v. Columbia Zinc & Lead Co.

• Decision Date: 02 May 1910
• Citation: 128 S.W. 232,143 Mo. App. 587
• Court: Missouri Court of Appeals
• Parties: D. C. WISE COAL CO. v. COLUMBIA ZINC & LEAD CO.

128 S.W. 232

143 Mo. App. 587

D. C. WISE COAL CO. v. COLUMBIA ZINC & LEAD CO.

Springfield Court of Appeals. Missouri.

May 2, 1910.

Motion to Modify Judgment. May 24, 1910.

1. ATTACHMENT (§ 217)—FORM OF JUDGMENT FOR PLAINTIFF.

In attachment, where defendant gave a forthcoming bond and the property was released, and the case was prosecuted to judgment for plaintiff, a general judgment should have been entered, instead of a special judgment with an order for special execution.

2. APPEAL AND ERROR (§ 1207)—DETERMINATION OF CAUSE—MANDATE AND PROCEEDINGS BELOW—RENDITION OF JUDGMENT.

In attachment, plaintiff obtained a special judgment with special execution, and subsequently moved for judgment on the forthcoming bond. Defendant and his trustee in bankruptcy moved to set aside the special judgment on the attachment and the order on defendant for production of the property, and that plaintiff be enjoined from further proceedings to enforce the order, judgment, or attachment, and from further pursuit of such property, its proceeds, or any supposed obligation therefor, under the attachment, or from moving against any of the parties on account of or under the attachment, or any claim by reason thereof. The order overruling this motion was reversed, with directions to the circuit court to set aside its order and to grant the motion and set aside the judgment and all orders emanating therefrom, and to enter a general judgment for plaintiff. Held, that this merely directed the erroneous special judgment and all orders emanating therefrom to be set aside, and that a general judgment for plaintiff be entered without any injunctive relief against him, so that it was error to include a provision enjoining him from further proceeding to enforce the attachment, judgment, or order, and from further pursuit of the property, etc.

3. APPEAL AND ERROR (§ 1207)—DETERMINATION OF CAUSE—MANDATE AND PROCEEDINGS BELOW—RENDITION OF JUDGMENT.

When, on appeal, a cause is remanded with directions to do a specific thing, the circuit court has no further discretion, but must make orders as commanded by the appellate court.

Appeal from Circuit Court, Newton County; F. C. Johnston, Judge.

Action by the D. C. Wise Coal Company against the Columbia Zinc & Lead Company. An order overruling a motion to set aside a judgment for plaintiff and all orders emanating therefrom was reversed and remanded, with directions (123 Mo. App. 249, 100 S. W. 680), and plaintiff appeals from the court's refusal to set aside the judgment, or to modify the same. Reversed.

H. S. Miller and John T. Sturgis, for appellant. George Hubbert, for respondent.

COX, J.

This is the second appeal in this case. The first, reported in 123 Mo. App. 249, 100 S. W. 680, was heard by the St. Louis Court of Appeals, to which reference is made for a full statement of facts. For the purposes of this appeal, it need only be said that the action is one by attachment with personal service and seizure of certain property under the attachment writ. Defendant gave to the sheriff a forthcoming bond and the property was released to defendant. The case was prosecuted to judgment, and in entering the judgment a special judgment, with an order for special execution, was entered, instead of a general judgment as it should have been. Special execution was issued and returned nulla bona, and, on motion of plaintiff, an order was made requiring defendant to produce the property by a given date, and, upon failure to do so, directing the sheriff to assign the forthcoming bond to p...