Stephens v. Curtner
| Decision Date | 05 June 1920 |
| Parties | J. W. STEPHENS, Appellant, v. WILCE CURTNER, Respondent |
| Court | Missouri Court of Appeals |
Appeal from Pemiscot Circuit Court.--Hon. Sterling H. McCarty Judge.
AFFIRMED.
Judgment affirmed.
Mayes & Gossom for appellant.
M. O Morris, Sam J. Corbett and Ward & Reeves for respondent.
This is a suit in replevin for a quantity of whiskey. This property was owned by plaintiff and was seized and taken from his possession by the defendant, a constable, under and by virtue of executions issued by a justice of the peace. There were four several judgments, the validity of which are not questioned, rendered against this plaintiff in a justice of the peace court in favor of four minor negro boys, each being a plaintiff in one of such suits. In the proceedings in the justice court resulting in these judgments, the plaintiffs being minors, the justice appointed M. O. Morris as next friend of each such plaintiff under the provisions of Section 7435 R. S. 1909 and the suits were conducted in the names of such minors by M. O. Morris as next friend. Judgments in each of such suits were obtained in the justice court and in due time four several executions were issued and placed in the hands of the defendant constable for collection. Under such executions the constable levied on and seized the whiskey in question. Thereupon this plaintiff, the execution defendant, instituted this suit in replevin in the circuit court and on giving bond the replevin writ issued and under it plaintiff regained from the constable the whiskey on which the constable had levied the executions mentioned.
The plaintiff's claim is that, after the constable had the executions against him in his hands for collection, he effected a settlement with the several execution plaintiffs whereby each of such plaintiffs gave him a receipt in full for the amount due on the respective judgments and executions; that this plaintiff then paid the costs in each case and demanded that the executions be returned satisfied. The next friend of such minor execution plaintiffs was not consulted in reference to the alleged settlements and refused to sanction such settlement made by his wards and instructed the constable to proceed to enforce the executions. The constable therefore refused to release the property levied on and this suit in replevin was instituted. The judgment in the trial court was for defendant and plaintiff appeals.
The position of plaintiff is that he had a right to settle the judgment debts directly with the minor plaintiffs on terms satisfactory to them without consulting the next friend of such minors who had been appointed such and conducted the suit for them; that having made settlement with such execution plaintiffs and obtained receipts against the judgment debts the executions became functus officio and the constable no longer had a right to hold his property thereunder; that under such facts replevin is a proper remedy against this constable to regain the property.
There are several reasons, we think, why plaintiff cannot recover in this action. The matter most discussed in the briefs and arguments is the right of a judgment defendant, in a suit wherein the plaintiff is a minor and sues by next friend, to settle the judgment by paying the amount thereof directly to the minor plaintiff instead of to his next friend. That however is not the concrete case here presented. Had this plaintiff paid the judgments in full to the minor execution plaintiffs a more difficult question would be presented. The provisions of our statutes with reference to appointment of a next friend for minor plaintiffs, providing for the giving of a bond by such friend conditioned to account to such infant for the money and property received in such suit, clearly contemplates that payment of the judgment should be to the next friend. [Section 1744, 1745, R. S. 1909; Aley v Railroad, 211 Mo. 460, 476, 111 S.W. 102.] As the giving of a bond is left to the discretion of the court or officer making the appointment of a next friend, the fact that none is given because none is required would not affect the right of the next friend to receive the payment of the judgment debt. In the present case, however, the judgment defendant in the suits by the minor plaintiffs did not pay the full amount of the judgment debts to such plaintiff. He undertook to settle same in full by paying only a small part of what was due. This he could not do. Even before final judgment when the matter is yet in dispute a court could hardly hold as valid and binding a contract of compromise settlement made by the infant plaintiff without the consent of the next friend having control of the litigation. Clearly such compromise settlement would not be binding after final judgment in favor of the infants, for them there is no disputed claim to settle. Even in the case of an adult the payment of a part only of an undisputed debt cannot be held to discharge the whole, though such was the agreement of the parties. The payment of a part only of what one is bound in law to pay does not discharge the residue though paid under such agreement. [Chamberlain v. Smith, 110 Mo.App. 657, 660, 85 S.W. 645; Willis v. Gammill, 67 Mo. 730; Price v. Cannon, 3 Mo. 453; Winter v. Railroad, 73 Mo.App. 173, 193; Moore...
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