Semple, Birge & Co. v. Atkinson

• Decision Date: 30 April 1877
• Court: Missouri Supreme Court
• Parties: SEMPLE, BIRGE & CO., Appellants, v. JOHN ATKINSON, et al., Respondents.

64 Mo. 504

SEMPLE, BIRGE & CO., Appellants,

v.JOHN ATKINSON, et al., Respondents.

Supreme Court of Missouri.

April Term, 1877.

Appeal from Bates County Circuit Court.

A. Henry, for Appellants, cited: Lippold vs. Heed, 58 Mo. 213; Thomas vs. Irwin, 43 Mo. 162; McDonald vs. Hulse, 16 Mo. 502; Brengle vs. Bushey, 40 Md. 141; Blackburn vs. Jackson, 26 Mo. 308; Williams vs. Boyce, 11 Mo. 537; Spears vs. Ledergerber, 56 Mo. 465; Walden vs. Bolton, 55 Mo. 405.

C. C. Bassett, for Respondents, cited: Burge Suret. 206; 3 Den. 512; Small vs. Smith, 38 Mo. 478; Benedict vs. Smith, 10 Paige, 126.NORTON, Judge, delivered the opinion of the court.

This is an appeal from a judgment of the circuit court of Bates county, sustaining a motion to quash an execution for $365.75 issued on a judgment obtained in said court by plaintiffs against the defendants.

The reasons assigned in the motion for quashing the execution are: 1, that the judgment on which it had been issued had been satisfied and paid; 2, that defendant Atkinson was only a surety on the note on which the judgment had been rendered; that plaintiff had previously caused an execution to be issued on the judgment, which was levied upon certain lands of the defendant Bigelow, who was the principal, and also on a threshing machine; that the land levied upon was claimed as a homestead by said Bigelow, and that after the levy was made the attorney of plaintiffs agreed witn Bigelow that if he would give the said attorney, as agent of plaintiffs, his note for the amount of the debt and costs, and secure the same by deed of trust on the real estate which had been levied upon, he would extend the time of payment six months, release the said threshing machine, and also release Bigelow from any further obligation on said judgment; that this arrangement was agreed to by Bigelow, who executed his note to said attorney, payable in six months, for $417, and also a deed of trust on the real estate mentioned to secure the same; that the costs were paid, the threshing machine restored to Bigelow, and the execution ordered to be returned.

This motion of defendants appears to have been treated as a petition, and all the material allegations were denied by plaintiffs, and the fact alleged to be that the note and deed of trust were taken as collateral security, and not in payment, and that the attorney had no authority to receive the note in payment of the debt, and that it was not so received; that the time of payment was only extended, and that this extension of time was made for the benefit of Atkinson.

The motion to quash the execution was sustained, and from this judgment plaintiff appeals.

The evidence in the case tends to show that Atkinson was the surety of Bigelow on the note on which judgment was rendered and execution issued; that the first execution issued on the 3d of June, 1873, was levied on real estate of Bigelow, exempt from execution on the ground of its being his homestead, and also on one threshing machine, as the property of Bigelow; that subsequently thereto, the said Bigelow and the attorney of the plaintiffs made an arrangement under which Bigelow executed his...