86 P. 805 | Utah | 1906
On March 20, 1903, Edward Blake brought suit in the city court of Salt Labe City, Utah, to recover from defendant, John W. Earrell, the sum of $466. An attachment was duly issued and on the same day the suit was commenced the plaintiff attached the sum of $494.88, deposited in McCormick’s bank and belonging to defendant. On August 19, 1903, a judgment was obtained in the city court of Salt Lake City, against defendant, for the sum of $466, the amount sued for, and for costs. Oh September 5, 1903, the sum of $494.88 collected on the attachment proceedings, was turned over to plaintiff, Edward Blake, by the sheriff of Salt Lake county, to apply on said judgment. Defendant appealed the case to the district court, and, on June 27, 1904, plaintiff again obtained a verdict against defendant for the sum of $466, and $190.10 costs. Erom the judgment entered on the verdict, defendant appealed to' this court. The plaintiff, Edward Blake, having died September 12, 1904, appellant was thereafter duly appointed administratrix of his estate and was substituted in this court as the- plaintiff and respondent. The appeal was dismissed, and the judgment of the trial court thereby affirmed. Plaintiff failed, neglected, and refused to credit on the judgment the $494.88, or any part thereof, collected through the attachment proceedings referred to, but proceeded to collect from defendant, through the processes of the court the whole of said judgment. Defendant, on March 31, 1905, applied for, and later obtained from the district court in which the judgment was obtained, an order requiring
The contentions made by appellant are (1) that respondent, in order to have tbe money, which was collected and paid over to appellant on tbe attachment, credited to tbe judgment thereafter obtained in tbe district court, tbe respondent was required to amend bis answer — a general denial — and plead such fact as payment; (2) that the court was without authority to compel a satisfaction of tbe judgment to tbe extent of tbe money seized and. paid over to the appellant on tbe attachments and (3) that tbe appellant was entitled to enforce, by execution, tbe collection of tbe full amount of tbe judgment, regardless of the money received by him on tbe attachment. These contentions are without merits.
Section 3210, Bev. St. 1898, provides that:
“When a judgment shall have been fully paid and not satisfied, or the instrument of satisfaction shall have been lost, the court in which the same was recovered may, upon satisfactory proof, authorize the attorney of the judgment creditor to satisfy the same, or may by order declare the same satisfied, and direct satisfaction to be entered upon the docket.”
Section 3211:
“When a judgment shall have been satisfied, in whole or in part, or as to any judgment debtor, and such satisfaction entered upon the docket as aforesaid, such judgment shall, to the extent of such satisfaction, be discharged and cease to be a lien; and if any execution shall be thereafter issued thereon, it shall be endorsed with a memorandum of such partial satisfaction, and a direction to collect only the residue thereof, or to collect only from the judgment debtor remaining liable thereon.”
"Under these provisions of tbe statute tbe court not only bad tbe power, but, under the admitted facts in this case, it was its duty to malee an order directing a partial satisfaction of the judgment to tbe extent of tbe money collected (494.88) through the attachment proceedings hereinbefore referred to. (19 Ency. Pl. & Pr., 125; Musser v. Gray [Cal.], 31 Pac. 568.)
