Sweringen v. Adm'r of Eberius

• Decision Date: 31 May 1842
• Citation: 7 Mo. 421
• Parties: SWERINGEN v. ADMINISTRATOR OF EBERIUS. SWERINGEN AND BREDELL v. ADMINISTRATOR OF EBERIUS.
• Court: Missouri Supreme Court

7 Mo. 421

SWERINGEN

v.ADMINISTRATOR OF EBERIUS.

SWERINGEN AND BREDELL

v.ADMINISTRATOR OF EBERIUS.

Supreme Court of Missouri.

May Term, 1842.

ERROR TO FRANKLIN CIRCUIT COURT.

POLK, for Plaintiffs.

GAMBLE, for Defendant.

TOMPKINS, J.

These were actions of assumpsit brought by the plaintiffs in error, in the Circuit Court, by attachment. The writ was levied on property, and returned not found as to the defendant. After the commencement of the suit, and before the rendition of the judgment, the defendant below died, and after his death, David Edwards, public administrator of Franklin county, and also administrator of said Eberius, appeared to the action, and pleaded the general issue; upon which issue a trial was had, and judgment rendered for the plaintiffs in error, and execution awarded. A special fieri facias was awarded against the attached property, and at the return term, the administrator moved the court to quash the said fieri facias, and the court, on such motion, quashed the fieri facias. This act of the court is assigned for error. The defendant in error contends, that the law does not authorize the issuing of an execution against the assets of an intestate; that the right of issuing an execution does not result from the fact that the property was attached.

The lien by attachment is given against certain persons, who by their conduct subject themselves to the suspicion of fraudulent conduct, the plaintiff in the attachment making oath to such facts as induce this suspicion; and when the defendant dies, one would suppose that, as he is no longer able to defeat the just claims of his creditors, this lien of the attachment ought also to die. ^(a) A judgment obtained in a court of record against a debtor who appears and defends the action, is a lien on the real property of the defendant, and a much more meritorious lien than a lien of attachment, procured simply by the affidavit of the plaintiff; and yet this lien of a judgment yields its preference, after the death of the defendant. The administrator then steps in and takes possession of the goods. They are under the gurdianship of the law from the moment the defendant dies. The first section of the fourth article of the act respecting Executors and Administrators, directs how all demands against the estate of any deceased person shall be classed: first, funeral expenses; second, expenses of the last sickness, wages of servants, and demands for medicine and medical attendance, during the last sickness of the deceased; third, debts due to the State; fourth, judgments rendered against the deceased. Thus we see that there are three classes of debts preferred to judgments rendered against the deceased; judgments, too, rendered in the courts of justice on an investigation of the...