Magwire v. Marks

• Decision Date: 31 March 1859
• Citation: 28 Mo. 193
• Parties: MAGWIRE, Plaintiff in Error, v. MARKS, Defendant in Error. MAGWIRE, Plaintiff in Error, v. MARKS, Defendant in Error.
• Court: Missouri Supreme Court

28 Mo. 193

MAGWIRE, Plaintiff in Error,

v.MARKS, Defendant in Error.

MAGWIRE, Plaintiff in Error,

v.MARKS, Defendant in Error.

Supreme Court of Missouri.

March Term, 1859.

1. If a levy of an execution be made upon property not belonging to the defendant therein and such execution returned satisfied to the amount made by the execution sale, should the plaintiff in the execution be compelled to refund to the true owner the amount received by him from such sale, he will be entitled to have the satisfaction endorsed on the execution set aside and to have an execution issue for the full amount of the judgment.

2. A. recovered a judgment against B. Execution was issued thereon and levied by order of A.--he giving the plaintiff an indemnification bond--on certain personal property in possession of B. but known by A. to be claimed by C. as trustee for the wife of B. The sheriff made sale of the property levied on, and the amount made was endorsed on the execution in pro tanto satisfaction thereof. C. sued the sheriff and recovered judgment against him for the amount made by said levy and sale, with interest, which was paid by A. Held, that A. was entitled to have the sheriff's return vacated and set aside so far as it stated a partial satisfaction of the execution, to have the same amended in accordance with the facts, and to have an execution issue for the whole amount of the judgment.

Error to St. Louis Court of Common Pleas.

On the 9th of January, 1843, John Magwire recovered a judgment in the St. Louis court of common pleas against Dennis Marks for $1,575.35, and on the 21st of April, 1843, Magwire recovered another judgment against said Marks for $960.54. On the 3d of December, 1847, executions issued upon these judgments, and the sheriff by direction of Magwire levied the same on certain personal property. A sale was made under these levies and the amount made was credited pro rata upon the two executions. Magwire afterwards filed his motions to vacate the satisfaction entered by the sheriff in his returns on the executions. These motions were heard upon the following agreed statement of the facts: “It is agreed by the parties in the cause that Samuel Conway was sheriff of St. Louis county at the time the execution on the judgment in this cause was levied; that he as such sheriff, by the direction of the plaintiff, levied on the property endorsed on said execution as the property of the defendant; that at the time of said levy the said property was in the possession of the defendant; that at the time of the levy the sheriff was notified that Marks held the property only as agent of Luther C. Clark, trustee of Amira Marks, wife of defendant, and thereupon the sheriff suspended further proceedings until he was indemnified by Magwire, the creditor, who directed the sheriff to proceed upon the levy; that the amount endorsed on said execution as having been made by said sheriff is the proceeds of the sale of said property to various purchasers at the sale and which was paid over to the plaintiff by said sheriff; that formal bills of sale were made to the various purchasers according to the statute law; that afterwards Luther C. Clark, trustee of Amira M. Marks, wife of defendant, instituted a suit in this court against said Conway, sheriff aforesaid, to recover the value of said property levied upon under said execution, and such proceedings were had in said suit that said Clark recovered judgment at the______term, 1855, of said court for the value of said property against said Conway, amounting to $4,842.18 and costs; that the plaintiff indemnified said sheriff before the said property was sold; and the plaintiff having notice of the claim of said Clark took upon himself the defence of the last mentioned suit, and after judgment and before this motion or notice thereof given to defendant, said sheriff Conway paid said judgment, and by reason of the recovery of said judgment the plaintiff, on account of his bond of indemnity, did pay a sum equal to the whole amount exclusive of interest that he had received from said sheriff, and also all the costs, fees and commissions retained by him as having been made by the sale of said property under said execution; that Dennis Marks, the defendant, assuming to act as agent for his wife's trustee, Clark, was active in causing said claim of said Clark to be made, and said Marks employed counsel to institute and prosecute said suit against said Conway to recover the value of said property; and...