Heuring v. Williams
| Decision Date | 31 October 1877 |
| Citation | 65 Mo. 446 |
| Parties | HEURING v. WILLIAMS, PLAINTIFF IN ERROR |
| Court | Missouri Supreme Court |
Error to Cape Giradeau Court of Common Pleas.--HON. H. G. WILSON, Judge.
The statute referred to, in the opinion of the court, is as follows: Sec. 67. If any person, against whom an execution shall be issued, apply to any judge of the court out of which the execution or order of sale may have been issued, by petition verified by oath or affirmation, setting forth good cause why such execution ought to be stayed, set aside or quashed, reasonable notice being previously given to the opposite party, such judge shall thereupon hear the complaint.
Sec. 68. If it appear that such execution ought to be stayed, set aside or quashed, and the petitioner enter into recognizance * * * to be approved by such judge, conditioned that if such application finally be determined against such petitioner, he will pay the debt * * * then such judge shall make an order for the stay of the execution or order of sale.
Sec. 69. The judge shall return such petition and proceedings thereon, duly certified, to the court out of which the execution was issued * * * and the clerk of such court shall enter the same upon his motion docket; and the court shall hear and determine the same in a summary way, according to right and justice, and may award a perpetual stay of such execution or may order the execution to be enforced.
Alex. Ross for plaintiff in error.
J. Mc Williams for defendant in error.
On the 29th day of December, 1863, the plaintiff obtained judgment against the defendant in the Cape Girardeau Court of Common Pleas, on which judgment execution was issued on the 21st day of January, 1864, and was returned nulla bona.
On the 13th day of August, 1868, the defendant filed his petition in bankruptcy in the United States District Court for the Eastern District of Missouri, and on the 3d day of May, 1869, he was by the order of said court “forever discharged from all debts and claims which by said act are made provable against his estate, and which existed on the 13th day of August, A. D., 1868.”
On the 24th day of March, 1873, an alias execution was issued on the judgment rendered by the Common Pleas Court, returnable to the May term of said court, and on the 26th day of May, 1873, the defendant filed, in open court, a motion for a perpetual stay of execution on said judgment, on the ground that he was discharged therefrom by the decree in bankruptcy. The motion was...
To continue reading
Request your trial
-
Bauch v. Weber Flour Mills Co.
... ... ... Judgment reversed and cause remanded ... John T ... Sturgis and Frank B. Williams for appellant ... (1) ... Such execution has the same force and effect as if issued on ... a circuit court judgment and is ... in the court issuing the execution. Mellier v ... Bartlett, 89 Mo. 134, 137; Heuring v. Williams, ... 65 Mo. 446. (3) The question of the jurisdiction of the court ... rendering the judgment may be questioned on a motion to quash ... ...
-
Pflanz v. Pflanz
...S.W. 1066, but it does not preclude a motion in open court for the same purpose. [Mellier v. Bartlett, 89 Mo. 134, 1 S.W. 220; Heuring v. Williams, 65 Mo. 446.] Moreover, has been held that said section provides a full, complete and adequate remedy at law for staying, setting aside or quash......
-
Farris v. Smithpeter
...in term time. [Section 2244, R. S. 1909; Mellier v. Bartlett, 89 Mo. 134, 137, 1 S.W. 220; Parker v. Railroad, 44 Mo. 415, 419; Heuring v. Williams, 65 Mo. 446.] It also been ruled that there is an adequate remedy at law and injunction is not the proper remedy where the sale of personal pro......
-
Farris v. Smithpeter
...in term time. Section 2244, R. S. 1909; Mellier v. Bartlett, 89 Mo. 134, 137, 1 S. W. 220; Parker v. Railroad, 44 Mo. 415, 419; Heuring v. Williams, 65 Mo. 446. It has also been ruled that there is an adequate remedy at law, and injunction is not the proper remedy where the sale of personal......