Potter v. Whitten

• Decision Date: 04 December 1911
• Parties: JOHN A. POTTER, Appellant, v. E. G. WHITTEN, Defendant; THE CONQUEROR TRUST COMPANY, Garnishee, Respondent
• Court: Missouri Court of Appeals

142 S.W. 453

161 Mo.App. 118

JOHN A. POTTER, Appellant, v. E. G. WHITTEN, Defendant;

THE CONQUEROR TRUST COMPANY, Garnishee, Respondent

Court of Appeals of Missouri, Springfield

December 4, 1911

Motion for Rehearing Overruled January 8, 1912.

Appeal from Jasper Circuit Court.--Hon. David E. Blair, Judge.

REVERSED AND REMANDED.

Judgment reversed and cause remanded.

H. S Miller for appellant.

(1) We have but one form of action in this state for actions at law and in equity. Gawtry v. Adams, 10 Mo.App. 32. (2) It is not required in a judgment at law that the court shall in terms direct the issuance of an execution, and the same rule has been applied to a decree in chancery. 17 Cyc. 928; Fontaine v. Hudson, 93 Mo. 62; Ramsey v Roy, 144 Mo. 191; Smith ex rel. v. Rogers, 191 Mo. 344; Pelz v. Bollinger, 180 Mo. 252; State ex rel. v. Renick, 157 Mo. 292. (3) A judgment is not vitiated by the addition to it of merely superfluous provisions or directions, or of matters which follow as the legal consequences of the judgment whether or not they are incorporated in it. 23 Cyc. 795. (4) If the judgment be in personam, and also authorize the sale of certain property for its satisfaction, the plaintiff is not compelled to avail himself of this property, but may take out an ordinary execution, and levy upon other property belonging to the defendant. Freeman on Executions (1876), p. 19; Bennett v. Morehouse, 42 N.Y. 191; Bank v. Grant, 103 N.W. 69; 23 Cyc. 800; R. S. 1902, secs. 2172, 2173. (5) Garnishee appeared generally and filed answer, also several demurrers to denials. In short the garnishee seems to have exhausted all efforts in this case before finally filing the motion to quash. A motion to quash an execution for an irregularity must be prosecuted with diligence; any considerable delay on the part of the movant will be treated as a waiver of the irregularity and an irrevocable renunciation of his right to quash the writ. 17 Cyc. 160; Berry v. Perry, 81 Ala. 103; Milner v Akin, 58 Ga. 555; Little v. Atchison, 76 S.W. 283; Sultman v. Symme, 56 N. Y. App. 165; Hapgood v. Goddard, 26 Vt. 401; Fink v. Renick, 33 Mo.App. 624; Bennett v. Moorehouse, 42 N.Y. 192.

Fred W. Kelsey for respondent.

(1) The judgment in question was obtained in an action in equity to foreclose a pledge or an equitable mortgage and no personal judgment could be rendered against the defendant in this proceeding. There is no statutory authority for such foreclosure proceedings and in the absence of a statute, no deficiency judgment can be rendered. Smith v. Moore, 53 Mo.App. 525; State ex rel. v. Evans, 176 Mo. 310; Fithian v. Monks, 43 Mo. 522; Riley's Admr. v. McCord's Admr., 24 Mo. 265; Mason v. Barnard, 36 Mo. 384; Crocker v. Currier, 65 Wis. 662, 27 N.W. 825; Hoskins v. Adkins, 77 Mo. 540. (2) The right to a deficiency judgment in a mortgage foreclosure is purely statutory. Wisconsin Loan & Bldg. Assoc. v. Pride, 116 N.W. 637. This is an action in equity. Conde v. Rogers, 77 N.Y.S. 518; Wilson v. Johnson, 43 N.W. 148. (3) An execution can issue against the other property of the debtor on a special judgment only after the property on which the special charge is made is sold and the deficiency ascertained. This is particularly true, where, as in this case, the plaintiff has elected to pursue the pledged property from the beginning of his proceedings. R. S. 1909, sec. 2837; 9 Ency. Pl. and Pr. 490; Ransom v. Sutherland, 46 Mich. 489, 9 N.W. 530; Gies v. Green, 42 Mich. 107, 3 N.W. 283; Ayers v. Rivers, 64 Iowa 543, 21 N.W. 23; Clapp v. Maxwell, 13 Neb. 542, 14 N.W. 653. (5) An execution must conform to the judgment. That is to say on a special judgment the plaintiff is entitled only to a special execution until he has exhausted the same. R. S. 1909, sec. 2172; Rankin v. Real Estate Co., 199 Mo. 345. (6) The motion to quash was timely made. Berry v. Perry, 81 Ala. 103, 1 So. 118; Boyle v. Zacharie, 6 Pet. (U.S.) 648, 8 U.S. (L. Ed.), 532; Bristow v. Payton, 15 Am. Dec. 134. (7) The garnishee was bound to inquire into the legality of the proceedings, in order to protect itself in the payment of the judgment, though it stood indifferent between the parties. Hedrix v. Hedrix, 103 Mo.App. 40; McCloon v. Beattie, 46 Mo. 391.

OPINION

NIXON, P. J.

This is an appeal from an order of the circuit court of Jasper county quashing a general execution and writ of garnishment issued thereon in a case entitled John A. Potter, Plaintiff, v. E. G. Whitten, Defendant. The petition in that case (which was introduced in evidence in this proceeding) recited the making of a promissory note on November 17, 1909, by Whitten to Potter for the sum of $ 1,658.13, payable four months after date, bearing interest at eight per cent. per annum, and that as collateral security Whitten deposited at the time of making said note with the Joplin Trust Company, 5,008 shares of the capital stock of the Consolidated Mining Company, said stock being of the par value of $ 25 per share, with the understanding that said stock would be delivered by said Joplin Trust Company to Potter upon failure of Whitten to pay said note when due. After the allegation of non-payment of the note follows a prayer for judgment for the sum of $ 1,658.13 with interest and costs, "and that said certificate of the capital stock of said Consolidated Mining Company, comprising 5,008 shares of the capital stock thereof, of the par value of $ 25 each, be sold to satisfy said judgment or part thereof and for such other and further orders and judgments as to the court may seem meet and just." The promissory note in question (also introduced in evidence in this proceeding) contains this provision: "Collateral security of 5,008 shares of stock in Consolidated Mining Company of Ind. Ter. with full authority to Potter to sell same at private or public sale without notice of non-payment of this note subject to 60 days' extension." This note was attached to the petition in the original action as an exhibit.

Defendant appeared in the original action and filed an answer denying generally the allegations of the petition.

Thereafter, at the April term, 1910, the following judgment was entered:

"John A. Potter, Plaintiff, v. E. G. Whitten, Defendant:

"Now at this day this cause comes on for trial; the plaintiff appears by H. S. Miller, his attorney, and it appearing to the court that the defendant has heretofore appeared and filed an answer herein, and now failing to further appear and plead, answer or demur to the plaintiff's petition the same is taken as confessed; and the plaintiff not requiring a jury, all and singular the matters in issue are submitted to the court for trial; after hearing all the evidence and being fully advised in the premises, the court finds the issues in favor of the plaintiff; that the defendant is justly indebted to the plaintiff in the sum of $ 1,724.45 and that plaintiff is entitled to recover that amount from the defendant as his debt and damages.

"The court further finds that for the purpose of securing the payment of the note sued on herein the defendant indorsed in blank and delivered and pledged to the plaintiff Certificate No. 25 issued to defendant for 2,000 shares of the par value of $ 25 each of the capital stock of the Consolidated Mining Company, a corporation organized under the laws of the Indian Territory; said stock being dated October 19, 1908, and that by reason of the premises the plaintiff is entitled to and has a first lien upon said 2,000 shares of said capital stock securing the payment of said debt aforesaid.

"The court further finds that for the purpose of securing the payment of the note sued on herein, the defendant indorsed in blank and delivered and pledged to the plaintiff Certificate No. 30 issued to the defendant for 3,008 shares of the par value of $ 25 each of the capital stock of the Consolidated Mining Company, a corporation organized under the laws of the Indian Territory, said certificate being dated November 20, 1908, and that by reason of the premises the plaintiff is entitled to and has a first lien upon said 3,008 shares of said capital stock securing the payment of the debt aforesaid.

"It is therefore considered, ordered and adjudged by the court that the plaintiff have and recover of and from defendant the sum of $ 1,724.45, the debt and damages so found due by the court as aforesaid, which judgment shall bear interest at the rate of eight per cent. per annum and for costs.

"It is further ordered and adjudged by the court that said sum of $ 1,724.45 so found and adjudged to be due plaintiff upon said note, be and the same is hereby declared and adjudged and decreed a first lien upon said Certificate No. 25 as above described for 2,000 shares of the par value of $ 25 each, of the capital stock of said Consolidated Mining Company, and also declared, adjudged and decreed a first lien upon said Certificate No. 30 as above described for 3,008 shares of the par value of $ 25 each, of the capital stock of said Consolidated Mining Company.

"It is further ordered, adjudged and decreed by the court that the lien of plaintiff upon said shares of stock as aforesaid, be and the same is hereby ordered foreclosed, and that said stock be sold thereunder and that any sums remaining after payment of the indebtedness shall be paid to the defendant herein and in case the amount due plaintiff be not paid, that plaintiff have and recover of and from the defendant any balance of indebtedness aforesaid remaining unpaid after sale of said stock and that execution issue accordingly."

On this judgment, on June 4, 1910, the clerk issued a general execution. The sheriff's return shows that it was executed on June 11, 1910, by levying upon the stock which had been...