McManus v. Burrows
| Decision Date | 10 December 1912 |
| Citation | 152 S.W. 3,246 Mo. 438 |
| Parties | THOMAS WARD McMANUS, Appellant, v. CAMILLA BURROWS et al.; SIM T. PRICE et al., Respondents |
| Court | Missouri Supreme Court |
Appeal from St. Louis City Circuit Court. -- Hon. Matt G. Reynolds Judge.
Affirmed.
T. J Rowe, Thomas J. Rowe, Jr., and Henry Rowe for appellant.
(1) No one but a party to the suit can have an execution. Price and Nichols were the attorneys for the plaintiff, and Gerhart Grenner and Trembley were the commissioners appointed by the court to make the partition and had no authority to direct the issuance of an execution. R.S. 1899, Secs. 1563, 3151, 4392, 4415 and 4422; Hoover v. Railroad, 115 Mo. 77; Davis v. McCann, 143 Mo. 172; State ex rel. v. Renick, 157 Mo. 292; Beedle v. Mead, 81 Mo. 306. (2) The right to an execution is a strictly statutory right, and must be construed strictly, and he who claims such right must be able to place his finger on the statute which grants it. (3) The execution must conform with the judgment, and must describe the judgment. If it fail in this essential part it is void. Freeman on Executions, Sec. 42, pp. 64 and 65; Zelle v. Bobb, 14 Mo.App. 267; Bam v. Chrisman, 27 Mo. 293; Coe v. Ritter, 86 Mo. 287; Maloney v. Association, 57 Mo.App. 384.
R. M. Nichols for respondents.
(1) The words "party" and "parties," as used in Secs. 2090, 2172, 2279 and 2290, R.S. 1909, include all who are directly interested in the judgment. The allowances to commissioners, attorneys and other costs make the beneficiary "party" to the judgment and he is estopped by the judgment, could exercise the right of appeal from such allowance, as could the "parties" to the suit. Sec. 2279 not only makes the recipient or beneficiary of the judgment "a party" but gives him the right of execution. Donaldson v. Allen, 213 Mo. 293; State ex rel. v. St. Louis, 145 Mo. 551; State ex rel. v. Johnson, 123 Mo. 43; Robbins v. Chicago, 71 U.S. 657; Cortez v. Superior Court, 86 Cal. 274; Thomas v. College, 43 P. 966; Freeman on Executions (2 Ed.), Sec. 21; Fisk v. Lamoreaux, 48 Mo. 523; Gay v. Orcutt, 169 Mo. 400; Paddock v. Railroad, 60 Mo.App. 337. (2) It is contended there is a variance, because the execution does not run against all the parties. The execution is against all of the parties named in the judgment excepting Camilla S.W. Burrows, and the execution shows, as a reason why it is not against her, that she had paid the part of the judgment against her. The judgment against her was her separate liability. No other party was liable for it. (a) An execution on a judgment against her which had been paid, would have been a nullity. Durfee v. Moran, 57 Mo. 374; Mill Co. v. Sugg, 83 Mo. 476. (b) "Where partial payments have been made upon a judgment, the execution should recite the judgment as it was originally recovered and state the amount that has been paid, and the sum that is still due, or be issued for the whole amount of the judgment with the credit indorsed on the back of the writ." 8 Ency. Pl. & Pr., p. 428; Walker v. Deaver, 79 Mo. 679; State ex rel. v. Burns, 129 Mo.App. 484.
This is an appeal from an order of the circuit court of the city of St. Louis overruling a motion to recall and quash an execution issued on a judgment partitioning certain property in kind and awarding costs and attorneys' fees.
On the coming in of the report of the commissioners the plaintiff, the present appellant, moved for confirmation of the report and the court took up at the same time with plaintiffs' motion the petition or motion for the allowance of attorneys' and commissioners' fees and thereupon rendered judgment confirming the report of the commissioners, making certain allowances to the commissioners and to the attorneys in the case and allowing certain other items of expense and costs. The whole amount of all these allowances was by the judgment taxed as costs and adjudged against the several parties in proportion to their interests in the lands partitioned, i. e., one half against appellant, one third against Park, trustee, and one sixth against Camilla S.W. Burrows. At the next term of court the attorneys and commissioners moved for execution on this judgment, the motion reciting the several allowances made by the court and further stating that Camilla S.W. Burrows had paid all sums adjudged against her, that appellant had paid one half of the allowance for attorneys' fees and Park had paid nothing and prayed execution against appellant and Park for the sums adjudged against them and yet unpaid. The court, over appellant's exception, sustained the motion and ordered that execution issue. The execution issued pursuant to this order clearly identified the judgment upon which it rested, recited the several allowances made, stated the interests of the several partitioners in the property partitioned and the proportions of all the allowances and costs adjudged against the respective partitioners, set forth the payment by Camilla S.W. Burrows of the whole amount adjudged against her and the payment by appellant of that part of the allowance for attorneys' fees adjudged against him, and commanded that there be made from the property of appellant one half of each allowance except that for attorneys' fees and that there be made from the property in Park's hands as trustee one third of each allowance made in the judgment.
In view of the questions presented by appellant's counsel in this court this is a sufficient statement of the substance of the execution issued. Appellant's motion to recall and quash the execution was overruled and he appealed.
Other facts pertinent to the questions presented will be stated in the course of the opinion.
A reversal is sought on the grounds that (1) the judgment does not authorize the issuance of execution, (2) the attorneys and commissioners had no right to have execution issued and (3) the execution does not conform to the judgment.
I. The judgment in partition was not appealed from and became final with the lapse of the term. Appellant took and is in possession of the parcels of realty set off to him in the commissioners' report as confirmed by the court. The statute (Sec. 2279, R.S. 1909) authorized judgment for his proportionate share of the costs against each party to the partition proceedings and the issuance of execution on such judgment, the levy of such execution on the property of the respective partitioners and the sale, under that execution, of enough of the property of each to pay the amount adjudged against him, and no more.
1. Under the general statute (Sec. 2172, R.S. 1909) "the party in whose favor any judgment, order or decree is rendered, may have execution in conformity therewith," and section 2279, supra, specifically warrants the issuance of execution on judgments of this kind in suits in partition. Even at common law it was not necessary that the judgment formally award execution. [1 Freeman on Executions, Sec. 16.]
2. It is insisted, however, that the sections of the statute (Secs 2609 and 2578, R.S. 1909) which authorize allowances in favor of attorneys and commissioners in suits in partition provide that these shall be taxed and collected as costs and, it is argued, that collection thereof must be made by fee bill, not by execution. The argument is principally based on the idea that the judgment is merely for costs, in the ordinary sense, and that those in whose favor allowances are made are not "parties" entitled to execution. There was a time when the statute (Gen. Stat. 1865, p. 689, Sec. 22) provided that in suits in partition the petitioner or petitioners should, in the first instance, pay all costs, be then entitled to judgment against the other parties in proportion to their respective interests and, in case there was partition in kind, a fee bill should issue for the collection of the costs so adjudged, for the reimbursement of such petitioners. In 1879 (Sec. 1006, R.S. 1879; 2279, R.S. 1909) this section was amended and the provision as to payment of all costs by petitioners was eliminated, as was that respecting collection by fee bill, and the present statute enacted authorizing judgment against each allottee for his due proportion of all costs, the issuance of execution therefor and the levy and sale thereunder if necessary. In view of this significant amendment we think there can be no doubt the Legislature intended to substitute execution for fee bill in collecting costs and allowances in suits in partition and that the statute authorized the issuance of the execution in this case. The fact the sections of the statute referred to ...
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