Wilburn's Adm'r v. Hall

• Decision Date: 31 January 1853
• Citation: 17 Mo. 471
• Parties: WILBURN'S ADMINISTRATOR, Respondent, v. HALL, Appellant.
• Court: Missouri Supreme Court

17 Mo. 471

WILBURN'S ADMINISTRATOR, Respondent,

v.HALL, Appellant.

Supreme Court of Missouri.

January Term, 1853.

1. When a judgment of a circuit court has been affirmed by the supreme court with damages, the clerk of the circuit court may issue execution upon such affirmed judgment; nor is it necessary that an order of the circuit court should first be obtained.

Appeal from Jackson Circuit Court.

Hicks, for appellant. 1. No execution can issue upon an affirmed judgment until an order of the Circuit Court is first obtained. The damages awarded by the Supreme Court do not become incorporated with and make a part of the original judgment. 2. The judgment in this case was special, for the foreclosure of a mortgage. The mortgaged premises were adjudged to be sold, and the execution makes the damages a lien from the time when the mortgage was given, in 1845; whereas, they could be no lien until a transcript of the judgment awarding them was filed in the office of the clerk of the Circuit Court. 3. The defendant's right to elect what property shall be first sold is taken away from him, as to the amount of damages, and that amount is ordered to be levied on specific land, and perhaps to the detriment of other creditors who have obtained prior liens.

S. L. Leonard, for respondent. 1. The judgment of the Supreme Court, affirming the judgment of the Circuit Court, removed the supersedeas created by the appeal, and left the judgment of the Circuit Court in full force. 12 Mo. Rep. 603. 2. The transcript of the judgment of the Supreme Court, when filed in the office of the clerk of the Circuit Court, constituted a part of the record of the cause, and the judgment of the Circuit Court became modified by that of the Supreme Court.

RYLAND, Judge, delivered the opinion of the court.

This was a motion in the court below to quash an execution. The Circuit Court overruled the motion, and the defendant excepted, and brings the case here by appeal. The record shows that the plaintiff, Solomon L. Leonard, as administrator de bonis non of the estate of Edward Wilburn, sr., deceased, recovered against the defendant, Jacob Hall, a judgment, at the March term of the Jackson Circuit Court, in the year 1852, for the sum of eighteen hundred and sixty-three dollars and sixty-four cents, principal and interest, together with costs of suit. The debt being secured by mortgage, judgment of foreclosure was also had, and an execution against the mortgaged premises ordered. The defendant, Hall, appealed to the Supreme Court, and by the Supreme Court the judgment of the Circuit Court was affirmed, with ten per cent. damages on the amount. The judgment of the Supreme Court, affirming the judgment below, with ten per cent. damages, was certified by the clerk of this court, to the clerk of the Circuit Court, and thereupon, the clerk of the Circuit Court issued execution upon the judgment, which had been affirmed, for the amount of the original judgment, and the ten per cent. damages allowed on the affirmance. The defendant, Hall, moved the Circuit Court to quash this execution. The execution and motion are as follows:

“The State of Missouri,

To the sheriff of Jackson county--Greeting:

Whereas, Solomon L. Leonard, administrator de bonis non of the estate of Edward Wilburn, sr., deceased, on the 16th day of March, in the year of our Lord, one thousand eight hundred and fifty-two, at our Jackson Circuit Court, hath recovered against Jacob Hall, in the sum of eighteen hundred and fifty-three dollars and sixty-four cents, which said sum was adjudged to the said Solomon L. Leonard, administrator as aforesaid, and also for his costs; and, whereas, by a decision of the Supreme Court of the state of Missouri, made herein, at the July term A. D. 1852, of said court, said judgment as aforesaid was affirmed, and ten per cent. damages on the same, (making the additional sum of one hundred and eighty-five dollars and thirty-six cents), was awarded to said plaintiff therein by said Supreme Court:

These command you, that of the real estate of the said Jacob Hall, mortgaged herein, to-wit: beginning at the southeast corner of the north-east...