People Savings Bank v. McDowell

• Decision Date: 25 June 1918
• Docket Number: No. 2281.,2281.
• Parties: PEOPLE'S SAVINGS BANK v. McDOWELL et al.
• Court: Missouri Court of Appeals

204 S.W. 406

PEOPLE'S SAVINGS BANK v. McDOWELL et al.

No. 2281.

Springfield Court of Appeals. Missouri.

June 25, 1918.

Appeal from Circuit Court, Texas County; L. B. Woodside, Judge.

Action by the People's Savings Bank against James McDowell and others. Judgment for plaintiff. From a judgment overruling plaintiff's motion to quash an execution not issued at his request, it appeals. Reversed and remanded, with directions.

Hiett & Scott, of Houston, for appellant. Lamar & Lamar, of Houston, for respondents.

STURGIS, P. J.

At the August term, 1917, of the circuit court of Texas county, the plaintiff filed a motion to quash the execution theretofore issued in this case on July 17, 1917, and the levy thereunder. The grounds of this motion are that the execution was not issued at the request or instance a the plaintiff, in whose favor the judgment was rendered, but at the request and instance of one of the defendants, McKinney. Evidence was heard on the motion, showing without question that the plaintiff did not request, or have anything to do with having, this execution issued. In fact, the plaintiff, some month or so later, had a second execution issued, which was outstanding when this motion to quash was heard. The evidence is quite conclusive that the attorneys for defendant McKinney were moving factors in having this execution issued, in order to have same levied on the property of another defendant, McDowell. It is true that the clerk of the court needed little suggestion to induce him to act in this matter, but that little came from the defendant McKinney. One of McKinney's attorneys frankly stated that he talked with the clerk in regard to issuing an execution, "telling him the situation—that McDowell had property over there, and execution should be issued and property levied on." He further admits that he directed the sheriff "to levy on this particular house." The court overruled the motion to quash, and plaintiff has appealed.

That no one other than the party in whose favor the judgment is rendered has the right to have an execution issued thereon, or to control such execution after being issued, or direct on what property to make a levy, is the settled law of this state. The clerk of the court has no right to issue an execution of his own motion, or for the benefit or at the suggestion of interested parties, other than the party obtaining the judgment. The party in whose favor any judgment is rendered has the sole and exclusive right to have an execution issued thereon, and to make request or give directions as to what shall be done thereunder. Beedle v. Mead, 81 Mo. 297, 305; Hoover v. Railway Company, 115 Mo. 77, 83, 21 S. W. 1076; Davis v. McCann, 143 Mo. 172, 178, 44 S. W. 795; Ritchie v. Carter, 89 Mo. App. 290, 294. The fact that this execution was not issued by the party in whose favor the judgment was rendered is sufficient grounds for quashing same. State v. Lemcke, 117 Mo. App. 486, 94 S. W. 734.

The learned counsel for respondent does not seriously controvert the proposition of law above stated. The objection, however, is raised that the execution sought to be quashed and the sheriff's return thereon, showing a levy, are not in the record brought to this court, and therefore that the judgment should be affirmed. Blandon v. Martin, 50 Mo. App. 114, Catron v. Lafayette County, 125 Mo. 67, 72, 28 S. W. 331, and Schenker v. Breece, 125 Mo. App. 412, 102 S. W. 659, are cited as sustaining this proposition. The first two cases cited relate to quashing a levy under an execution, rather than the...