Slagel v. Murdock

• Decision Date: 31 October 1877
• Citation: 65 Mo. 522
• Parties: SLAGEL, ADMINISTRATOR OF SNIDER, PLAINTIFF IN ERROR v. MURDOCK.
• Court: Missouri Supreme Court

65 Mo. 522

SLAGEL, ADMINISTRATOR OF SNIDER, PLAINTIFF IN ERROR

v.MURDOCK.

Supreme Court of Missouri.

October Term, 1877.

Error to Cape Girardeau Circuit Court.--HON. D. L. HAWKINS, Judge.

Martin L. Clardy and J. C. Noel, for plaintiff in error, cited Wag. Stat. 792, § 18; Willburn v. Hall, 17 Mo. 471; Walter v. Tabor, 21 Mo. 75; Toler on Execution, pp. 266, 447; Rorer on Judicial Sales, §§ 580, 581.

Henderson & Shields, for defendant in error, cited Slagel v. Murdock. 52 Mo. 521; S. C. 51 Mo. 175: Wag. Stat. 1069 § 45, 1070 § 50; Parker v. Han. & St. Jo. R. R. 44 Mo. 415; Wag. Stat. 1068 § 37, 601 §1; Bain v. Chrisman, 27 Mo. 293.

HENRY, J.

Alex. B. Snider, administrator of the estate of Oliver E. Snider, on the 11th day of December, 1871, obtained a judgment in the circuit court of St. Francois county, against Lindsey Murdock for $1,530.37 and $262.27 costs. Murdock appealed to the Supreme Court, and on the 19th of November, 1872, without any suggestion of plaintiff's death, which occurred Jannary 1st, 1872, the judgment of the Circuit Court was affirmed. The mandate of the Supreme Court on that affirmance was filed with the clerk of the St. Francois Circuit Court, December 9th, 1872, and on the 19th of that month the clerk of said court issued an execution, directed to the sheriff of Bollinger county, in favor of John Slagel, administrator de bonis non, who had been appointed to succeed the deceased Administrator on the 13th of February, 1872. It was delivered to the sheriff of Bollinger county on the 21st of December, 1872, and on the 23rd was levied on lands in said county belonging to defendant, and, on the 23rd of March, 1873, was levied on personal property of said defendant. The sheriff duly advertised that he would sell the property on the fifth day of February, 1873, at the February term of the Bollinger Circuit Court, but by an act of the General Assembly, approved January 23rd, 1873, the time of holding said term was changed to the first Monday in March, 1873, and on the 12th day of March, 1873, the corresponding day of the February term, at which the property had been advertised to be sold, the sheriff sold the property, and realized on said sale, $2,167.50, and, after paying costs, had in his hands $1,646.60, to be applied on the execution, and returned it, satisfied in full. On the 31st of March, 1873, the Supreme Court, for reasons not appearing of record, but which do appear in the opinion of the Supreme Court in the case of Slagel, Adm'r v. Murdock, 52 Mo. 521, set aside said judgment of affirmance, and John Slagel, administrator de bonis non, appeared, and by consent of parties, was substituted as plaintiff and the judgment was again affirmed. It will be perceived that the execution was issued after the first affirmance of the judgment by the Supreme Court. It was received and levied upon the property of the defendant and the property advertised for sale, before that judgment of affirmance was set aside, which occurred only twelve days before the sale. The statute provides (Wag. Stat. 792 § 18) that “where a judgment shall have been, or may hereafter be had in the name of an executor or an administrator, execution thereafter may be sued out, or an action thereon maintained by the administrator de bonis non, upon his filing in the clerk's office of the court in which such judgment was rendered, a certified copy of his letters of administration de bonis non.” We assume that the administrator de bonis non, before the execution was issued, complied with the requirements of that section, as the contrary is not alleged. The defendant filed his motion in the circuit court of St. Francois county to quash said execution and require the sheriff to pay to him, instead of the plaintiff in the execution, the money in his hands. The circuit court of Cape Girardeau county, to which, on the application of Murdock for a change of venue, the cause was sent, sustained the motion, and from the judgment of that court on the motion, Slagel the administrator, has appealed to this court.

1. FINAL JUDGMENT: APPEAL: Motion for new trial: Irregular execution.

Messrs Henderson & Shields, counsel for Murdock, contend that it was not such a final judgment as an appeal lies from, but this court held otherwise in Parker v. Waugh, 34 Mo. 340; Bruce v. Vogel, 38 Mo. 100; Bain v. Chrisman, 27 Mo. 293. They also contend that if an appeal lie, there should have been a motion in the lower court for new trial or review, in order that that court might have an opportunity to correct its own errors if any were committed. In Bruce v. Vogel and Parker v. Waugh, supra, it was directly decided that an appeal would lie from a decision of an inferior court on a motion, although the points of law be not specifically stated in the bill of exceptions, nor a motion for a new trial be made.

2. IRREGULAR EXECUTION: How cured: The doctrine of Relation.

The appeal bond operated as a supersedeas, and counsel for defendants contend that the issuing of the execution was unauthorized until the final disposition of the cause, and that, therefore, the judgment of the court on the motion to quash and require the sheriff...