George v. Middough

Citation62 Mo. 549
PartiesTHOMAS D. GEORGE, Appellant, v. WILLIAM MIDDOUGH, Respondent.
Decision Date31 May 1876
CourtUnited States State Supreme Court of Missouri

OPINION OF SHERWOOD. J.

Appeal from Caldwell Circuit Court.

C. S. McLaughlin, for Appellant.

I. The destruction of the record of the judgment did not destroy the judgment. If the proceedings to restore the record were void, then in 1862, when scire facias was issued to revive the judgments, said judgments were in the same situation as they were the following day after the burning of the records, and a scire facias may issue on a destroyed judgment. (Strain vs. Murphy, 49 Mo., 337.)

II. Execution may issue at any time within ten years from the time such judgment may have been revived by scire facias, otherwise there might be a lien with no means of enforcing it. (Wagn. Stat., 790, §§ 4, 5; Id., 791, § 11.)

L. E. Carter, for Respondent.

I. The restoration of the destroyed record of judgments, rendered in 1859, was void, no petition having been filed for that purpose, and no notice having been served on defendants.

E. O. Hill, for Respondent.

I. The proceedings to restore the lost records were utterly void. (Gen. Stat., 1865, pp. 183, 184, §§ 14 and 15.)

II. The executions were issued more than ten years after the rendition of the judgments. (Gen. Stat., 1865, p. 636, §§ 4-8, 11.)

WAGNER, Judge, delivered the opinion of the court.

It appears from the record that in 1859 certain judgments were rendered against defendants, and that in 1860 the records of the judgments in the county were destroyed by fire, including the judgments in question. At the next term of the court after the destruction by fire, the judgments were restored by order of the court, but this restoration was made on motion of plaintiff's attorney without any notice whatever being given to defendants and without bringing them into court. The judgments were revived from time to time till 1867, the last renewal being in this last named year.

In February, 1872, executions, were issued upon the judgments, and defendant's lands were levied upon and sold, and plaintiff became the purchaser.

Plaintiff relied upon the sheriff's deed for title, and the court excluded it for two reasons. First, because the proceedings in 1860 to restore the judgments were void; and secondly, because no execution could issue upon the judgments after ten years had elapsed from their rendition.

The proceedings in 1860 to restore the judgments were long prior to the legislative enactment, upon that subject, requiring the adverse parties to be brought in by summons, and therefore that act cannot be made applicable to this case. Lost or destroyed judgments might be restored or proved at common law, but in every such case the opposite party should be notified.

It is a cardinal principle, that whenever a party's rights are to be affected by a summary proceeding, or motion in court, that party should be notified, in order that he may appear for his own protection.

The destruction of the record book, on which the judgments were written, did not destroy the judgment debts (Strain vs. Murphy, 49 Mo., 337), and although the court wrongfully restored the judgments, when the defendants had no notice, and were not in court, yet when the revivals took place by scire facias, they were regularly brought in, and they should then have made their objection by a plea of nul tiel ...

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70 cases
  • Rosenzweig v. Ferguson
    • United States
    • Missouri Supreme Court
    • 25 Octubre 1941
    ...void. It is administrative at best; and in the absence of notice to parties affected, it is not even administrative but void. George v. Middough, 62 Mo. 549; Clamorgan v. O'Fallon, 10 Mo. 112; Merchants v. Evans, 51 Mo. 535. (8) None of the proceedings in the mechanic's lien suit can be reg......
  • Baker v. Baker
    • United States
    • Missouri Court of Appeals
    • 21 Diciembre 1954
    ...90(2). Since the purpose of reasonable notice is that the party to be affected adversely 'many appear for his own protection' [George v. Middough, 62 Mo. 549, 551; Dougherty v. Manhattan Rubber Mfg. Co., 325 Mo. 656, 29 S.W.2d 126, 127; Mandel v. Bethe, Mo.App., 170 S.W.2d 87, 89], or, as o......
  • Jackson's Will, In re
    • United States
    • Missouri Court of Appeals
    • 17 Mayo 1956
    ...by a summary proceeding, or motion in court, that party should be notified, in order that he may appear for his own protection.' George v. Middough, 62 Mo. 549, loc. cit. 551. See also section 506.060 RSMo 1949, V.A.M.S. Luna had interests which were affected both as beneficiary and as trus......
  • Crabtree v. Aetna Life Ins. Co.
    • United States
    • Missouri Supreme Court
    • 17 Diciembre 1937
    ...Maloney v. Hunt, 29 Mo. App. 379; Jones v. St. Joseph & G.I. Ry. Co., 183 Mo. App. 224, 170 S.W. 427; Doan v. Holly, 27 Mo. 257; George v. Middough, 62 Mo. 549; Heillier v. Loring, 242 Mass. 251, 136 N.E. 248; Turner v. Jones, 67 Fla. 121, 64 So. 502; Garner v. Towler, 25 Ariz. 101, 213 Pac......
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