Yantis v. Burdett

• Decision Date: 31 May 1835
• Citation: 4 Mo. 4
• Parties: JOHN YANTIS v. NELSON BURDETT.
• Court: Missouri Supreme Court

4 Mo. 4

JOHN YANTIS

v.NELSON BURDETT.

Supreme Court of Missouri.

May Term, 1835.

APPEAL FROM THE CIRCUIT COURT OF LAFAYETTE COUNTY.

TOMPKINS, J.

On the 7th August, 1832, Yantis filed his bill against Burdett, stating that on the 11th May, 1829, he together with Benjamin F. Yantis and Joseph P. Letcher executed their promissory note to said Burdett, the defendant, payable on the 11th November then next, for the sum of one thousand dollars; that some time thereafter Burdett commenced suit against the complainant in the Circuit Court of Garrard county in the State of Kentucky, and that at the September court of the said year, judgment was rendered in said suit, for the sum due, and interest at the rate of six per cent. per year until paid, subject however to a deduction for interest paid until the first day of July, 1831; and that said Burdett then instituted a suit in the Circuit Court of Lafayette in this State, against the complainant, on the judgment so rendered in Kentucky, and at the June term thereof for the year 1832, had judgment against the complainant for the sum of one thousand dollars debt and fifty-five dollars thirty-eight and a half cents damages. The complainant then alleges that on or about the first day of July, 1831, Benjamin F. Yantis, one of the makers of the promissory note aforesaid, paid the defendant one hundred dollars, for which no credit was given, and that Burdett the defendant caused to be taken on execution in Kentucky property in the possession of the complainant to satisfy the judgment aforesaid, to the amount of about seven hundred and thirty dollars, which property was claimed by one John Buford, who, in compliance with the laws of Kentucky, gave the sheriff for the use of said Burdett, his bond for the payment of that sum of money, to be paid in the event that the property levied on should be found to belong to the complainant; that it was yet unknown to the complainant to whom the property was decided to belong; and that the defendant is now proceeding under the law of Kentucky, to make the money for which the judgment was there obtained as aforesaid, and had actually sold property of the complainant to the amount of fifty dollars for which no credit is given, and prays an injunction, &c.

Burdett answering admits the origin of the debt, the judgment and the proceedings under it in Kentucky, but says that the property levied on was valued at only four hundred and ninety-five dollars, and that he has not yet made any thing from the property so levied on: he admits that the complainant is entitled to a credit of ten dollars and thirty-nine cents, the amount of money by him received for property of the complainant sold in Kentucky to satisfy said judgment.

He admits also the payment of one hundred dollars, but says that it was applied to the payment of the interest accrued before the judgment in Kentucky. The complainant replied to the answer and the Circuit Court decreed for the complainant, making the injunction perpetual as to the five hundred and five dollars and thirty-nine cents.

On the part of the complainant, it is contended, that this case is one of exclusive chancery jurisdiction. He admits, that, if property to the full amount of the execution had been levied on, such levy might have been pleaded in bar; but such not being the case he has no relief at law. We...