Fiske, Knight & Co. v. Lamoreaux

• Decision Date: 31 October 1871
• Citation: 48 Mo. 523
• Parties: FISKE, KNIGHT & CO., Plaintiffs in Error, v. MOSES LAMOREAUX et al., Defendants in Error.
• Court: Missouri Supreme Court

48 Mo. 523

FISKE, KNIGHT & CO., Plaintiffs in Error,

v.MOSES LAMOREAUX et al., Defendants in Error.

Supreme Court of Missouri.

October Term, 1871.

Error to Washington Circuit Court.

G. I. Van Alen, for plaintiffs in error.

The motion of plaintiffs in error to quash was proper. (Parker et al. v. Waugh, etc., 34 Mo. 340.)

Louis F. Dinning, for defendants in error.

No one but the defendant in the execution can move to quash, and no one but the defendant in a judgment can move to set aside except in the case of judgments confessed, and then only for insufficiency of statement.

CURRIER, Judge, delivered the opinion of the court.

This was a proceeding by motion to quash an execution. It appears from the record that the firm of Lamoreaux & Co., in November, 1869, recovered a judgment in the Washington county Circuit Court against one Lumpkin for $2,369.50. An execution was issued and returned satisfied only in part, to-wit: $500. September 13, 1870, an alias execution was sued out for the benefit and to the use of Andrew Casey, who had taken an assignment of the judgment.

This execution was levied on the real and personal property of the execution debtor. In October, 1870, the plaintiffs in error obtained a judgment against the same party, on which an execution was duly issued. On the 13th of October, 1870, their attorney appeared in court and filed a motion to quash the alias execution which had been issued to the use of Casey, alleging as the ground of the motion, that the judgment upon which the execution issued had been paid and satisfied through collections under the prior execution. The court overruled the motion, and Fiske & Co. bring the case into this court by writ of error, insisting that their motion ought to have been sustained.

It is questionable, to say the least of it, whether the plaintiffs in error were in a position to appear in the case where they were not parties of record and submit the motion in question. But waiving that point, I find, on looking into the record, that the action of the court below was justified by the state of the evidence. It appears that the Lamoreaux judgment was duly assigned to Casey by a writing bearing date May 10, 1870; that he paid the amount due on the judgment in consideration of the assignment and as a purchaser, and not in the way of extinguishing the judgment.

Lamoreaux's attorney, who is chiefly relied upon to prove the alleged satisfaction, and to whom Casey paid the money, is not able to state that Casey...