Garth v. McCampbell

• Decision Date: 31 July 1846
• Citation: 10 Mo. 154
• Court: Missouri Supreme Court
• Parties: JEFFERSON GARTH v. JAMES McCAMPBELL ET AL

10 Mo. 154

JEFFERSON GARTH

v.JAMES McCAMPBELL ET AL

Supreme Court of Missouri.

July Term, 1846.

ERROR TO CALLAWAY CIRCUIT COURT.

TODD, for Plaintiff. 1. The court will permit amendments to show the truth of facts upon all writs of execution. 3 Marsh. 350, in lieu, see 2 Pirtle's Digest, p. 224, § 114. 2. The facts that the officer is to be benefited or injured by the amendment, will not control the discretion. 3. This motion is an equitable one, and the court will substitute an officer for the plaintiff where he has, even by negligence, been compelled to pay money for defendants in an execution; and will permit him, with plaintiff's consent, to use the execution to recover the money. 1 Litt. 137; 5 Mon. 128; 9 Mo. R. 45, and following.

JAMISON & HARDIN, for Defendants. 1. A motion should have been made and entered of record on the day on which defendants were notified to appear in court. 2. Parties to an execution ought to be concluded by the return of the sheriff. 3 Mon. 350; Caldwell v. Harlin, 1 Litt. 17. 3. If a sheriff or other officer to whom an execution has been directed, makes payment of the same, it cannot afterwards be levied on the goods of the debtor for the benefit of him who made the payment; such payment being in law a full discharge of the execution and a satisfaction of the judgment. 7 Johns. R. 426; Reed v. Pruyn and others, 9 Mass. R. 138; Hammatt v. Wyman, 17 Mass. R. 153; Brackett v. Windum, 3 Litt. R. 131-2-3; Bailey v. Gibbs, 9 Mo. R. 45

SCOTT, J.

Garth recovered a judgment against McCampbell, the sheriff of Callaway county, and his securities. An execution was issned on the judgment and placed in the hands of Bailey, the coroner. Influenced by the representations and, promises of others, and believing that the money would be paid, Bailey returned the execution, “satisfied by order of the plaintiff's attorney” without having received the money. Finding that his return rendered him liable for the debt, Bailey satisfied it. He then made a motion, which is the ground-work of the proceeding, to amend his return, so that the execution may not appear to be satisfied, and so that in the name of Garth, he may have execution against McCampbell and his securities. This motion was overruled, and the cause is brought here.

It is clear that when an execution has once been satisfied, the judgment, which was the foundation of the writ, becomes extinguished, and can no longer be made the ground work of any process. If a sheriff has an execution against a defendant, and satisfies it with his own money, he cannot afterwards use it against him. The writ is functus officio. His remedy is an action for...