Myrick v. Hamilton

• Decision Date: 27 January 1930
• Docket Number: No. 16751.,16751.
• Citation: 26 S.W.2d 1008
• Parties: MYRICK v. HAMILTON et al.
• Court: Missouri Court of Appeals

26 S.W.2d 1008

MYRICK v. HAMILTON et al.

No. 16751.

Kansas City Court of Appeals. Missouri.

January 27, 1930.

Rehearing Denied March 3, 1930.

Certiorari Denied April 8, 1930.

Error to Circuit Court, Livingston County; Ira D. Beals, Judge.

"Not to be officially published."

Action by Thomas B. Myrick against Aubrey Hamilton and another, in which defendants, to restain possession of property levied on, executed their forthcoming bond. The trial court sustained a motion to strike from the files a motion to set aside the judgment on the forthcoming bond, and the sureties bring error.

Motion to dismiss writ of error sustained.

See, also, 24 S.W.(2d) 165.

Agnes Mae Wilson and L. A. Warden, both of Trenton, for plaintiffs in error.

Scott J. Miller and Davis & Davis, all of Chillicothe, for respondent.

PER CURIAM.

This is a writ of error to the circuit court of Livingston county, Mo., from the ruling of said court in striking from its files a motion filed by plaintiffs in error to quash an execution and to set aside a judgment rendered by said court at a previous term. The matters here in controversy grew out of a suit in attachment instituted in the circuit court of Sullivan county, Mo.

We learn from the multiplicity of fragmentary records, briefs, and motions filed in this court that in 1923 one Thomas B. Myrick instituted suit in the circuit court of Sullivan county, Mo., against Aubrey Hamilton and Willard I. Myers, and sued out a writ of attachment against the property of said defendants; and the sheriff of Sullivan county, under said writ, levied upon certain cattle and hogs, the property of defendants therein, as described in the judgment hereinafter referred to.

Defendants, in order to retain possession of the property so levied upon, executed to the sheriff of said county their forthcoming bond with plaintiffs in error herein as sureties thereon. A change of venue was taken to Livingston county, Mo., and the cause was there tried. On January 31, 1924, judgment was entered in favor of the plaintiff and against defendant Willard I. Myers for $1,660, with interest, and it was adjudged that defendant Myers delivered to the sheriff of Sullivan county, on or before February 5, 1924, all of the property so levied upon and seized under said writ of attachment.

It appears Thomas B. Myrick was indebted to the Citizens' Bank of Laredo, Mo., on a promissory note dated January 17, 1923, for $1,550, with interest at 8 per cent. per annum from date. On September 22, 1925, Myrick assigned said judgment to the Citizens' Bank of Laredo, in payment of said note which at that time amounted to $98.03 more than the judgment so assigned. This assignment was filed in the office of the clerk of the circuit court of Livingston county, and was attached to the margin of the judgment record of September 23, 1925. The Citizens' Bank of Laredo did not have itself substituted for Myrick, but proceeded under the provisions of section 1354, R. S. 1919, in continuing the litigation in the name of the original plaintiff, Myrick.

The original action was instituted by Scott J. Miller, as plaintiff's attorney, under an agreement that he receive for his services 50 per cent. of any amount recovered. Mr. Miller represented both the original plaintiff and the Citizens' Bank of Laredo. In furtherance of his attempt to recover, Miller caused a notice to be served upon each of the sureties on the forthcoming bond to the effect that on January 7, 1926, he would move the court to enter judgment against the sureties on said bond. This notice was of date December 15, 1925. On January 4, 1926, the court issued an order directing the then sheriff of Sullivan county, as well as the former sheriff, to assign the bond to plaintiff, and such assignment was accordingly made prior to January 7, 1926.

Pursuant to the notice previously given, and on January 7, 1926, plaintiff filed said motion for judgment on the forthcoming bond. Hearing on the same was continued from term to term, and at the September term, 1927, on trial, a judgment was rendered against the sureties on the bond for $1,980 for the benefit of the Citizens' Bank of Laredo, assignee. After adjournment of said court for the September, 1927, term, and at the January term, 1928, the sureties on said bond filed in said court an assignment, the acknowledgment of which is dated December 31, 1927, by which plaintiff assigned said judgment to the Galt State Bank, one of the sureties on the forthcoming bond, and one of the parties against whom the judgment had been rendered. This assignment of the judgment occurred more than two years after the assignment thereof to the Citizens' Bank of Laredo.

In connection with the assignment to the Galt State Bank, W. A. McCracken, its cashier, C. A. Hamilton and Louisa J. Hamilton, filed a paper denominated "Special Appearance" in the nature of a motion to set aside the judgment on the forthcoming bond and to quash the execution which had been issued thereon. Plaintiff then filed a motion to strike said motion from the files, and, upon a hearing, the motion to strike was sustained, to which ruling the movant thereof saved an exception, but there was no motion for a new trial and no separate bill of exceptions; but on March 24, 1928, defendants filed affidavit of appeal. There is no record showing this appeal went further than the said affidavit; but, if it did, it may be assumed it was dismissed and defendants sued out a writ of error. After the appeal was taken on the matters here in issue, and on the same day, H. M. Pettit, president of the Galt State Bank, filed a petition in said cause as assignee of the former judgment, praying that he be permitted to enter of record satisfaction of the same. There was a hearing on Pettit's petition on November 27, 1928, and the judgment therein was rendered against him on April 1, 1929, after his counsel had filed affidavit for appeal from the judgment of the court in refusing him permission to satisfy the judgment. This court has rendered an opinion in that case (16752) 24 S.W.(2d) 165; the only appellant named therein being H. M. Pettit. The movants in the appeal now before us are Galt State Bank, W. A. McCracken, C. A. Hamilton, and Louisa J. Hamilton. Pettit was unknown in the litigation only after the court found against the bank, McCracken, and the Hamiltons on their motion to quash the execution. From this record, therefore, we conclude that the two cases cover different issues, and must be considered separately. Only one bill of exceptions has been filed, and that evidently was prepared and filed in case No. 16752. In the abstract of the record filed, we note the attorneys for plaintiffs in error include: "Judge's certificate on bill of exceptions covering all records in both cases."

And at the cover page of the abstract of the record filed in No. 16752, and attached thereto, is this notation: "This is an abstract of record for both cases numbers 16751 and 16752, and is to be used in connection with abstract of record and bills of exception filed herewith in each case."

The instrument to which the above is attached is entitled "Appellants and plaintiffs in error supplemental abstract of the record." This document, as shown by opposing counsel's receipt thereof, was delivered to the latter on November 26, 1929.

The first matter demanding our attention is plaintiff's motion to...