Rayburn v. Deaver

• Decision Date: 31 July 1843
• Parties: RAYBURN v. DEAVER.
• Court: Missouri Supreme Court

8 Mo. 104

RAYBURN

v.DEAVER.

Supreme Court of Missouri.

July Term, 1843.

APPEAL FROM ST. LOUIS CIRCUIT COURT.

POLK, for Appellant. 1. The court below committed error in rendering judgment against appellant for $662 83, when the bond is only $13. 2. As the bond in this case was executed on the 30th June, 1838, and the act of the Legislature on which the motion was based was not passed until the 15th of February, 1841, the Circuit Court did wrong to entertain the motion of plaintiff below, and give judgment against the appellant, upon it, in a summary way. 3. The record, in this case, does not show that any execution ever issued on the judgment against Bogardus and Snowden. But it is not only necessary that execution should have issued, but it should also have been returned no property found. See acts of 1840-41, p. 15.

PRIMM and TAYLOR, for Appellee. 1. The judgment was properly entered up under the act of 1841, concerning Attachments. It is well settled, that a party can enforce the payment of a claim accruing during the existence of one remedial law, according to the mode prescribed by a subsequent remedial law. 2 Cowen, 626; 4 Wheaton, 200, 204; 12 Wheaton, 378; and the case decided by the United States Supreme Court at the January term, 1843, entitled, Arthur Bronson v. John H. Kinzie et al. which is direct in point. 2. There was no error in the court supposing the bond to be for $13, as it is very apparent it was a mere clerical omission, and was sustained by common sense, by the obvious intentions of the obligors as deduced from the law under which the bond was given, and the very words of the bond itself. See the case of Grant and Finney v. Brotherton's Adm'rs, &c., 7 Mo. R. 458; the reasoning of which case applies with great force here.

HUDSON and HOLMES, on same side. After verdict and judgment everything will be presumed in law to have been done, which was necessary to have been done, in order to entitle the party to such verdict and judgment. Greenl. on Ev., § 19; 4 Dallas. 97; Catten v. Hood's Ex'rs, Greenl. 20, § 539.

NAPTON, J.^a1

Deaver commenced an action of assumpsit against Alonzo Bogardus and Arthur Snowden, and sued out a writ of attachment, after making the necessary affidavit. By virtue of this writ, the sheriff levied on goods and chattels to the value of seven hundred dollars, which goods were restored to the defendants on their entering into bond to the plaintiff, in conformity to the provisions of the statute. The penal portion of the bond reads as follows: “Know all men by these presents, that we, Robert R. Snowden, as principal, and Samuel S. Rayburn, as security, are indebted unto James Brotherton, sheriff ofSt. Louis county, or his assigns, in the sum of thirteen dollars, for the payment whereof we bind ourselves, our heirs, executors, and administrators, firmly by these presents. Sealed with our seals, and dated this 30th June, 1838.” The condition annexed to this obligation was for the return of the property levied on, specified in the terms of the condition, and stated to be worth seven hundred dollars. Judgment went for the plaintiff at the April term, 1841, for six hundred dollars upon which judgment a writ of fieri facias issued and returned nulla bona by the sheriff of St. Louis county. At the July term, 1841, the appellee moved the court to amend the aforesaid bond, by inserting the word ““hundred” after the word “thirteen” in the penal part of the bond: which amendment was so ordered. At a subsequent period of the same term, the appellant moved the court to set...