McManus v. Burrows
| Decision Date | 08 June 1915 |
| Parties | THOMAS WARD McMANUS, Appellant, v. CAMILLA S.W. BURROWS et al., Defendants; H. C. GRENNER, Respondent |
| Court | Missouri Court of Appeals |
Appeal from St. Louis City Circuit Court.--Hon. Let S. Rassieur Judge.
AFFIRMED.
Judgment affirmed.
T. J Rowe, Thos. J. Rowe, Jr., and Henry Rowe for appellant.
(1) Under the pronouncement of the Supreme Court of this State in the case of McManus v. Burrows, 246 Mo. 438, to the effect that execution number 94, December term, 1908, is in conformity with the judgment, unexceptionable and valid, the payment by appellant of all the costs in said execution itemized as payable by him, on the 24th day of December 1912, constituted a full and complete satisfaction of his judgment indebtedness; and execution number 114, April term, 1913, is without warrant or authority of law and is a nullity. (2) Execution number 85, February term, 1913, issued by order of Robert M. Nichols in favor of himself and Sim T. Price and against Matthew Park, Trustee, with its return of satisfaction, is preclusive of the rights of the several parties originally entitled thereto to have further execution; hence execution number 114, April term, 1913, is a mere nullity. McManus v. Burrows, 246 Mo. 438. (3) Execution number 114, April term, 1913, is unauthorized by the decree, not in conformity therewith and null and void. McManus v. Burrows, supra; Freeman on Executions, sec. 42, pp. 64, 65; Zelle v. Bobb, 14 Mo.App. 267; Bain v. Chrisman, 27 Mo. 293; Coe v. Ritter, 86 Mo. 287; Maloney v. Association, 57 Mo.App. 384. (4) Fees of commissioners and others in partition, ordered taxed as costs, while collectible by execution against the allotments of the several partitioners, are not such general orders or judgments as are contemplated by the statute and do not bear interest. Sec. 7181, R. S. 1909; Jones v. Trust Co., 105 S.W. 328. For cases on the allowance of interest see also: Bradley & Co. v. Asher, 65 Mo.App. 589; Adler & Sons Clothing Co. v. Corl, 155 Mo. 149; Railroad v. Knapp, Stout & Co., 160 Mo. 396; State v. Slaughter, 70 Mo. 484; State v. Boogher, 71 Mo. 631.
R. M. Nichols for respondent.
(1) The judgment herein has been declared to be a judgment, and consequently under the statute must bear interst, but if it were a mere "order" it would under the statute bear interest. McManus v. Burrows, 246 Mo. 438; Padley v. Catterlin, 64 Mo.App. 629; Kennedy Estate, 94 Cal. 22, 29 P. 412; Hayden v. Heffernan, 99 Mich. 262, 29 N.W. 57; Ritchey v. Carpenter, 2 Wash. 512, 28 P. 380; Bates v. Wilson, 18 Cal. 287, 32 P. 615; Carver v. Mayfield, 29 Tex. Civ. App. 439; Santa Clara Valley v. Prescott, 238 Ill. 625, 87 N.E. 852; Watson v. McManus, 223 Pa. 583, 72 A. 1066; Daggs v. Bolton, 6 Ariz. 370, 57 P. 611; Smith v. Smith, 115 P. 166 (Wash. 1911); Keifer v. Summers, 137 Ind. 106, 35 N.E. 1103, 36 N.E. 894; Mann v. Poole, 48 S. Car. 154, 25 S.E. 229; Baum v. Reed, 74 Pa. 320; Washington v. Denton, etc., Bank, 64 Tex. 4; Tit. "Interest," 22 Cyc. 1521. (2) Interest at six percent per annum is a part of any judgment or order of any court in this state; it is given by the statute in a contractual sense and by way of compensation for delay in payment. Realty Co. v. Insurance Co., 179 Mo.App. 138; R. S. 1909, secs. 7179, 7181; Devlin v. New York, 131 N.Y. 123, 30 N.E. 45; Smith v. Buffalo, 39 N.Y.S. 881; Hobbs v. United States, 19 Court of Claims 220; Natl. Bank v. Mechanics Natl. Bank, 94 U.S. 437, 24 L.Ed. 176; Re John Osborne's Sons & Co., 100 C. C. A. 392, 117 F. 184; Bowen v. Minneapolis, 47 Minn. 119, 59 N.W. 683. (3) The interest accruing or accrued upon a judgment, being contractual and directed by the statute, becomes a part of the debt, and the acceptance of the principal, if such were the case, is no obstacle to a recovery of the iterest. Martin's Ex. v. St. Louis, 139 Mo. 246; Hanson v. Crawford, 130 Mo.App. 232; Casualty Co. v. Mesker, 128 Mo.App. 183; Johnson v. Tuttle, 17 Abb. Pr. 315; Re Osborne's Sons & Co., 100 C. C. A. 392, 177 F. 184; Bennett v. Federal C. & C. Co. (W. Va.), 74 S.E. 418; Henderson Cotton Mfg. Co. v. Lowell Mch. Shops, 86 Ky. 668, 7 S.W. 142; Hobbs v. U.S. 19 Ct. of Claims 220; Natl. Bank v. Mech. Natl. Bank, 95 U.S. 432, 25 L.Ed. 176; Beer v. Foakes, L. R. 11 Q. B. Div. 221, 1 Eng. R. C. 370.
Allen, J., not sitting.
--This is an appeal from an order of the circuit court of the city of St. Louis, overruling a motion to quash an execution, the execution referred to being number 114, returnable to the April, 1913, term of the circuit court. It purports to have been issued on a judgment rendered in an action for partition in which one Thomas Ward McManus was plaintiff and Camilla Burrows and Matthew Park, as trustees, were defendants. The original execution was number 94, returnable to the December, 1908, term of the court. A motion to quash this execution number 94 was made and overruled and from that action the plaintiff McManus appealed to the Supreme Court. Upon that appeal being taken the sheriff returned the execution "unexecuted and unsatisfied," an appeal bond having been filed. The Supreme Court affirmed the action of the circuit court in an opinion filed December 10, 1912. [See McManus v. Burrows et al., defts; Price et al., resps., 246 Mo. 438, 152 S.W. 3.]
On December 24, 1912, as appears by the receipt of the clerk, Mr. McManus paid to the latter $ 7824.55 "for costs in the above entitled cause," as the receipt reads. This is apparently made up of one-half the allowances to the commissioners, the Title Company, the surveyor, and the court costs proper. The mandate of the Supreme Court following the above decision was filed in the circuit court December 31, 1912. It was admitted that on a date not named, but before the issue of the execution now in question, number 114, the clerk paid Mr. Grenner $ 2500, one-half of the $ 5000 allowance adjudged against Mr. McManus. In this execution number 114, after reciting the judgment in partition, as in execution number 94, it is set out that Camilla Burrows and Matthew Park, trustee, have respectively paid one-sixth and two-sixths of all the court costs, commissioners' fees and attorneys' fees and fees allowed to the Title Guaranty Trust Company and to the surveyor mentioned, and that Thomas Ward McManus has paid one-half of the attorneys' fees, one-half of the fee allowed to the Title Guaranty Trust Company, one-half the fee allowed to the surveyor, and one-half the court costs, and that on December 24, 1912, he (McManus) paid into the hands of the clerk of the court $ 7500, as one-half of the commissioners' fees awarded to the commissioners Gerhart, Grenner and Trembley. The execution then proceeds: "Now, therefore, this is to command you that of the goods, chattels and real estate awarded to the said Thomas Ward McManus by the commissioners' report filed in said cause, you cause to be made the sum of $ 675, being the interest upon the sum of $ 2500, so ordered to be paid by the said Thomas Ward McManus from the 23rd day of June, 1908, to the 24th day of December, 1912, at the rate of six per cent per annum." This $ 2500, for interest whereon this execution was issued against Mr. McManus, is apparently one-half of the $ 5000 awarded Mr. Grenner as commissioner. There is no evidence in the case as to any facts attendant upon the payment of this $ 2500 to Mr. Grenner; whether he gave a receipt for it, took it as a partial payment or demanded more at the time, either by way of principal or interest, does not appear.
The judgment in partition, which also awarded and taxed up costs to the commissioners and others, was rendered on June 23, 1908; and Mr. McManus paid the clerk of the court the $ 7824.55 on December 24, 1912, so that the interest for which this execution number 114 was issued, is for the intervening period.
The question here involved is over the liability of Mr. McManus to pay this interest. The trial court found that interest was due and, overruling the motion to quash and recall this execution number 114, the plaintiff (McManus), saving his exception, has duly appealed to our court.
Learned counsel for appellant here make four points in support of their contention against this action of the circuit court.
The first point made is that under the ruling of the Supreme Court in the McManus case, supra, to the effect that execution number 94, the execution returnable to the December term, 1908, is in conformity with the judgment and is unexceptionable and valid, that the payment, on December 24, 1912, by appellant of all the costs as set out in that execution constituted a full and complete satisfaction of his judgment indebtedness, and that the execution here involved is without warrant or authority of law and a nullity.
The second point made is that execution number 85, returnable to the February term, 1913, and issued by order of one of the attorneys in the case in favor of himself and his associate and against Park as the trustee, which was returned satisfied, is preclusive of the rights of the several parties originally entitled thereto to have further execution.
The third point made is that this execution number 114, now involved, is unauthorized by the decree, is not in conformity therewith and null and void.
The final and fourth proposition is that orders that fees of commissioners and others in partition be taxed as costs while making such fees and allowances collectible by execution against the allotment of the several partitioners, are not such general orders or judgments as are contemplated by the statute and do not bear interest. This latter point is really the crucial point in the case, and ...
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