Trammel v. Kirk

• Citation: 278 S.W. 739
• Decision Date: 01 February 1926
• Docket Number: No. 15522.,15522.
• Parties: TRAMMEL v. KIRK.
• Court: Court of Appeal of Missouri (US)

278 S.W. 739

TRAMMEL v. KIRK.

No. 15522.

Kansas City Court of Appeals. Missouri.

February 1, 1926.

Appeal from Circuit Court, Bates County; Charles A. Calvird, Judge.

"Not to be officially published."

Action by Roy Trammel against W. A. Kirk. Defendant appeals from an order overruling his motion to quash an execution issued out of the circuit court of Bates county on a transcript of a judgment rendered by a justice of peace in said county. Appeal dismissed.

Silvers & Silvers, of Butler, for appellant.

Howell H. Heck, of Rich Hill, for respondent.

BLAND, J.

This is an appeal from the action of the court in overruling defendant's motion to quash an execution issued out of the circuit court of Bates county upon a transcript of a judgment rendered by default by a justice of the peace in said county. The motion to quash the execution attacked the judgment on the ground that the justice was without jurisdiction to render it. No appeal bond having been given, the appeal in this case did not act as a supersedeas, and a levy was made on certain personal property of defendant. The return of the sheriff recites that—

"Executed the within writ in Jackson county, Mo., in Kansas City, in Kaw township, on the 2d day of April, 1924, by levying upon and seizing all the property in the itemized statement hereto attached, marked A and made a part hereof.

"Thereafter, on the 2d day of May, 1924, the affidavit of Townley Metal & Hardware Company, claiming said property above described, was served upon the undersigned sheriff, whereupon a copy of said affidavit was delivered to the plaintiff and reasonable time given him to make bond, which he did on the 7th day of May, 1924.

"Thereafter notice was given to the claimant that said bond had been executed and delivered to the undersigned sheriff, whereupon said claimant made and executed a bond and delivered the same to the undersigned sheriff on the 9th day of May, 1924, whereupon said property described in Exhibit A was delivered to the claimant.

"Said affidavit and said bonds executed by the plaintiff and claimant respectively are herewith returned with said execution, and said execution is herewith returned unsatisfied at the request of plaintiff."

On February 3. 1925, plaintiff satisfied the judgment upon the record, Just how the judgment happened to be satisfied does not appear. Defendant says that he did not pay it, had nothing to do with it, and that it was satisfied without his knowledge or consent. Since the satisfaction of the judgment, plaintiff has filed a motion in this court to dismiss the appeal, which we think must be sustained. It seems that there is nothing now before this court except a moot question; that is,...