Jones v. Hart

• Decision Date: 31 May 1875
• Citation: 60 Mo. 362
• Parties: BENJAMIN F. JONES, Respondent, v. RICHARD HART AND RICHARD J. HOUSE, Appellants.
• Court: Missouri Supreme Court

60 Mo. 362

BENJAMIN F. JONES, Respondent,

v.RICHARD HART AND RICHARD J. HOUSE, Appellants.

Supreme Court of Missouri.

May Term, 1875.

Appeal from DeKalb Circuit Court.

M. A. Low, for Appellants.

William Henry, with Strongs & Hedenburg, for Respondent.HOUGH, Judge, delivered the opinion of the court.

This is an appeal from a judgment rendered by the Circuit Court of DeKalb county, on motion, against the defendant, Hart, as principal, and the defendant House, as surety, on a delivery bond given by them to the sheriff of Caldwell county, for the delivery of certain personal property, levied upon by said sheriff as the property of Hart, under an execution issued from the Circuit Court of DeKalb county, on a judgment rendered in said court against said Hart, in favor of the plaintiff Jones.

The judgment was rendered at the October Term, 1873, for the sum of $4,634.91, and directed that certain real property, attached in the cause, should be sold to satisfy said judgment; and if it should prove insufficient, that the residue of the judgment should be levied of the remaining real estate, goods and chattels of the defendant. On this judgment a general execution was issued, directed to the sheriff of Caldwell county, which was by the sheriff levied on certain real estate, and also on several horses and cows, for which latter he took a delivery bond, as provided by law, signed by the defendant Hart, as principal, and the defendant House, as surety. The sheriff in his return shows, that the defendant failed to return said property on the day appointed, or at any other time, and that he made sale of the real estate for a sum which was insufficient to satisfy the execution. At the April term, 1874, to which said execution was returnable, the defendant Hart moved to quash the execution, for the reason that it was a general one and did not follow the judgment, and for the further reason that a special execution, in pursuance of the judgment, had been issued, directed to the sheriff of DeKalb county, under which the real property described in the judgment had been levied upon and advertised for sale, but had not then been sold.

On the same day, the defendant filed a motion to “expunge” the judgment under which the execution was issued. On the succeeding day the plaintiff filed a motion to enter a general judgment nunc pro tunc, and on the day following, the motion to “expunge” the judgment was overruled and the motion for the entry nunc pro tunc was sustained and a general judgment directed to be entered nunc pro tunc, to all of which the defendant excepted.

The only evidence on which the entry...