Foote v. Newell

• Decision Date: 31 January 1860
• Citation: 29 Mo. 400
• Parties: FOOTE et al., Appellants, v. NEWELL et al., Respondents.
• Court: Missouri Supreme Court

29 Mo. 400

FOOTE et al., Appellants,

v.NEWELL et al., Respondents.

Supreme Court of Missouri.

January Term, 1860.

1. By the provisions of an act of the legislature of the state of Indiana the defendant in an execution was entitled to “replevy” the same, and obtain a stay of execution for a specified period by giving a bond with securities in double the amount demanded by the execution, and conditioned for the payment of the full amount of the execution, with interest and costs at the expiration of the stay of execution. This bond the officer was to return with the execution to the office of the clerk who issued the execution, and it was made the duty of the said clerk to record the same. The act further provided as follows: “And such bond, from the date of its execution, shall be taken as, and have the force and effect of, a judgment confessed in a court of record against the person or persons executing the same and against their estates, and execution may issue thereon accordingly.” A judgment was obtained in Indiana, and a bond was duly executed and filed and recorded under the provisions of the above act. Held, that such bond could not be sued on in the courts of this state as a judgment of a court of the state of Indiana; that it was not entitled in this state, under the constitution of the United States and the act of Congress, to full faith and credit as a judgment of the state of Indiana.

Appeal from Gentry Circuit Court.

The thirteenth and fourteenth sections of the act of Indiana of February 4, 1831, are as follows: “Sec. 13. That any person or persons, against whom any judgment may be obtained, may have stay of execution thereon of thirty days, if the sum for which such judgment shall have been rendered shall not exceed six dollars; and a stay of execution of sixty days if such sum exceed the sum of six dollars and does not exceed the sum of twelve dollars; and a stay of execution of ninety days if such sum exceed twelve dollars and does not exceed twenty dollars; and a stay of execution of one hundred and twenty days if such sum exceed twenty dollars and does not exceed forty dollars; and stay of execution of one hundred and fifty days if such sum exceed forty dollars and does not exceed one hundred dollars; and a stay of execution of one hundred and eighty days if such sum exceed one hundred dollars; by procuring one or more sufficient securities to enter on the record of the court rendering such judgment a recognizance, acknowledging himself, herself or themselves bail for the payment of such judgment, together with the interest and costs accrued, accruing and to accrue thereon, which recognizance may be entered in open court or before the clerk of said court, and the same shall be considered as, and have the force and effect of, a judgment confessed in a court of record against the person or persons acknowledging the same, and their estates, and execution may issue thereon accordingly. Sec. 14. That when execution of any kind may issue upon any judgment upon which no stay of execution may have been taken under the provisions of the thirteenth section of this act, the officer issuing the same shall endorse thereon that the same is repleviable, and also the costs of the rendition of such judgment; and the person or persons against whom such execution may have been issued may replevy the same for the length of time specified in the said thirteenth section of this act and from and after the date of the rendition of such judgment, and the same may be endorsed on such execution aforesaid, by tendering to the officer having such execution in his hands a bond with one or more sufficient freehold securities, made payable to the execution plaintiff, in a penalty of at least double the amount demanded by such execution, and conditioned for the payment of the full amount demanded by such execution, together with the interest and costs accruing and to accrue thereon, at the expiration of the stay of execution to be fixed according to the provisions of this section and the said thirteenth section of this act; which bond shall be returned by the officer returning the execution, as a part of his doings thereon, to the office of the clerk from whence such execution issued; which bond shall be by such clerk recorded; and such bond from the date of its execution shall be taken as, and have the force and effect of, a judgment confessed in a court of record against the person or persons executing the same and against their estates, and execution may issue thereon accordingly.”

Lewis & Shambough, for appellants.

I. The court erred in permitting the defendants to file an answer at the succeeding term, and in overruling plaintiffs' motion to strike out the answer. The court also should have sustained the motion to strike out parts of the answer. The court should have given the declaration of law asked. The bond had the force and effect of a judgment confessed. It is within the act of Congress. No lapse of time short of twenty years is a bar to the action. (Manning v. Horan, 26 Mo. 570.)

Vories & Vories, for respondent.

I. The court properly overruled the motion to strike out the answer and parts of the answer. It was filed before default was taken. The bond is not a judgment of a sister state within the meaning of the constitution and act of Congress. (See 6 Mo. 463; 1 Mo. 375; 3 Mo. 84; 23 Mo. 375.) This action is not founded upon the original judgment obtained, but upon the bond. The prayer is for the penalty of the bond.

SCOTT, Judge, delivered the opinion of the court.

This is an action on what is alleged to be a judgment of the court of a sister state.

The petition states that the plaintiff, at a term of the circuit court for Wayne county, in the state of Indiana, on the 2d day of November, 1840, recovered a judgment in debt for $201.25 against the defendants Curtis, Newell and Hiram Morlan; that afterwards, in November, 1840, an execution issued on said judgment against said defendants endorsed by the clerk of said court; that the same was for making the sum therein named with interest therefrom from the 4th of November, 1840, and might be replevied according to law; which said execution was afterwards, to-wit, on the 30th day of January, 1841, returned by the sheriff of the said county of Wayne, endorsed “replevied by taking a replevin bond” and returning the same to the clerk of said court, executed by the...