Hubbard v. Moss

• Decision Date: 31 October 1877
• Parties: HUBBARD v. MOSS, EXECUTOR OF HENING, APPELLANT.
• Court: Missouri Supreme Court

65 Mo. 647

HUBBARD

v.MOSS, EXECUTOR OF HENING, APPELLANT.

Supreme Court of Missouri.

October Term, 1877.

Appeal from Newton Probate and Common Pleas Court.--HON. P. H. EDWARDS, Judge.

This was a proceeding under section 54, page 192 Wag. Stat, by motion against the sureties in a forthcoming bond given by the defendant in an attachment suit. The attachment suit was brought to recover rent, and the writ was levied on a part of the crop grown on the premises during the year for which the rent accrued. Defendant was personally served and subsequently appeared to the action, which resulted in a general judgment against him. At a subsequent term, without setting this judgment aside, and without notice to defendant, the court entered nunc pro tunc, as of the date of the first judgment, a special judgment against the property attached, and a general judgment against the defendant personally. The property released from attachment by the forthcoming bond not being found to answer the judgment against defendant, this proceeding was commenced against the sureties and resulted in a judgment against them, from which they appealed.

C. W. Thrasher for appellant.

I. Under the Landlord and Tenant act, the attachment is only intended to apply to other personal property of the tenant than the crop on which the lien exists, and an attachment of such crop, under the provisions of said act, and during the continuance of such lien is void. Wag. Stat. p. 881, § 26, p. 880, § 18; Price v. Roetzell, 56 Mo. 500; Sanders v. Ohlhausen, 51 Mo. 163.

II. The court had no authority, at a subsequent term after final judgment, to render another and different judgment than the one first rendered, for the reason that the first judgment was incorrect and that the law authorized a different judgment from the one rendered. Hyde v. Curling, 10 Mo. 359; State v. Clark, 18 Mo. 432; Jillett v. National Bank, 56 Mo. 304; Gibson v. Chouteau, 45 Mo. 171; Smith v Best, 42 Mo. 187; Jones v Hart, 60 Mo. 351.

N. H. Dale for respondent.

1. The motion to set aside the order quashing the writ, is in the nature of a motion for a new trial, and, as it was filed within four days, was in time to save all the rights of the parties. National Bank v. Williams, 46 Mo. 17.

2. There is no statute, nor principle of law, that would prevent a sheriff from seizing a crop grown on a farm, if it is otherwise liable to attachment. Sanders v. Ohlhausen, 51 Mo. 163.

3. When the order quashing the writ was set aside, the plaintiff was restored to his status before the making of the erroneous order. Drake on Attachment, Sec. 412; Carson v. Suggett, 34 Mo. 364; Han. & St. Jo. R. R. Co. v. Brown, 43 Mo. 294; Gott v. Powell, 41 Mo. 416; Caperton v. McCarkle, 5 Grattan 177.

4. There was personal service on defendant and a personal appearance to the action. The general judgment, first entered, was not void, but would hold the property attached as well as the other property of defendant. Wag. Stat., p. 188, § 36; Massy v. Scott, 49 Mo. 278.

5. The judgment entered, nunc pro tunc, was both general and special, and is authorized by the law. Bray v. McClury, 55 Mo. 128.

6. The proceeding on the motion for judgment against the security, on account of the failure to deliver the property named in the bond, was regular in every respect; and the original judgment being valid against the defendant, the objections raised by the surety cannot be sustained.

HENRY, J.

We cannot conceive why, even if the court had the right to make it, the nunc pro tunc entry was made. The two judgments were substantially the same. One, the first, was for $100, and that plaintiff have execution against the property of defendant; the second, was for the same amount, and that plaintiff have execution against the property attached in the suit, as well as against the other property of defendant. Under the execution awarded by the original judgment, the sheriff could have taken, as well the attached property as other property of defendant, and, under the second, he could do more. The lien of the attachment was not lost by the judgment as first entered. Section 36 of the attachment act, Wag. Stat., page 188, provides “when defendant has been served with the writ, or appears to the action, the judgment and execution shall hold, not only the property attached, but the other property of the defendant.”

Section 40, page 189, provides that “when defendant is summoned to appear, or shall voluntarily appear, the like proceedings shall be had between him and the plaintiffs, as in ordinary actions commenced by summons, and a general judgment may be rendered for or against the defendant.”

By section 58, page 193, the execution is required to be a common fieri facias, where the judgment is general; by section 27 of the act in relation to Landlord and Tenant “the proceedings on all attachments issued under this chapter shall be the same as provided by law in cases of suits by attachment.”

1. LANDLORD AND TENANT ACT: attachment; general and special judgment; nunc pro tunc; entry; forthcoming bond.

The first judgment entered in this cause was a proper judgment and there is no entry of record, nor is there anything in the nature of the proceeding to indicate that it was not the very judgment the court rendered. The nunc pro tunc entry was, therefore, improperly made, and the defendant in the attachment suit not being in court, the nunc pro tunc judgment was a nullity. That judgment being void, it follows that the execution issued on it was a nullity. By sec. 54, page 192, Wag. Stat. it is provided that “whenever it shall appear from the return of the officer upon an execution issued in an attachment suit that none of the property attached has been found, or only a part thereof, and that said execution is not fully satisfied, the court or justice shall direct the officer to assign to the plaintiff, his executor or administrator, the bond taken by him for the forthcoming of the property attached, and such court or justice may, upon motion, render judgment in favor of the plaintiff, his executor or administrator, against the obligors in the bond for the value of such property, &c.” It will be observed that the court cannot under this section render a judgment against the obligors in the...