38 Mo. App. 210 | Mo. Ct. App. | 1889
delivered the opinion of the court.
The questions of law presented by this appeal arise upon the following uncontroverted facts: The Mullanphy Savings Bank instituted suit by attachment against the defendant furniture company, and, upon the wi'it issued thereon, caused the seizure of a lot of -carpets. Three days later, the plaintiffs also brought suit by attachment against the furniture company, and caused the writ issued thereon to be levied on the same property, subject to the lien of prior levies. Pour days after the institution of the suit of the plaintiffs, the furniture company made a written offer to plaintiffs to allow them to take judgment against it for thirty-eight hundred and five dollars and seventy-seven cents, being the full amount claimed by plaintiffs, which
It was shown, upon the hearing of the plaintiffs’ application, that their execution was for the unpaid purchase money of the goods, on which they claimed an exclusive lien. It was further .shown that the offer to allow judgment to go, and the acceptance of such offer were in good faith, and that the proceeding was resorted to solely for the-purpose of obtaining a judgment and execution in the speediest and most economical manner warranted by law, and that this method of terminating the action wás not even in contemplation of the parties when the plaintiffs instituted their suit by attachment.
It will be thus seen that two questions are presented by this appeal: First. Is the judgment, obtained by plaintiffs, one authorized by the provisions of section 3658 of the Revised Statutes ? Second. Is the execution issued upon a judgment for the purchase price of personal property, when levied upon the property sold, entitled to precedence over senior attachments levied on the same property %
The appellant contends that the facts of this case show that the judgment was substantially one by confession, and, if upheld as valid, the parties to any controversy would hereafter resort to the provisions of this section, as a convenient method of avoiding the affidavit and other safeguards, having special reference to judgments by confession; that the statute was intended to cover those cases only, where the compromise of a claim was to be effected, and for that reason a judgment for the full amount sued for and costs is not within its contemplation. There is no force in this argument, The plaintiffs availed themselves of a right which one statute gives to them in express terms, and it is no answer to say, that, if they had pursued the provisions of another statute, their judgment would have been formally invalid. We are aware of no rule which makes one statute of greater force or dignity than another. It is only where the acknowledgment of the debt is made, in the absence of an action pending, that the judgment is formally one by confession.
There is nothing in Gilbert v. Gilbert, 33 Mo. App. 259, opposed to this view. We held in that case that the defendant in an attachment could not, by his voluntary appearance before the return term, confess the
In New York, where a statute, identical with section 3658 of our statutes, was in force, long" anterior to its adoption in this state, the courts have uniformly held that the section is a substitute for the common-law method of cognovit actionem,, whereas a judgment by confession is a substitute for a judgment by warrant of attorney (Beards v. Wheeler, 11 Hun. 539, affirmed, 76 N. Y. 213), and also held that the fact that the offer is for the whole of the plaintiff ’ s demand does not affect the validity of the judgment. Ross v. Bridge, 24 How. Pr. 163. It results that the first point must be ruled against the appellant.
Conceding, therefore, that the plaintiff’s judgment and execution were valid, the next proposition to be decided is, whether such execution' could be levied upon the property sold, so as to entitle it to precedence over senior attachments levied on the same property. This proposition was not pressed in argument by the plaintiff’s counsel, but it necessarily embraced' in his first assignment of errors that the court erred in grantingthe plaintiff’s motion.
Section 2353 of the Revised Statutes of 1879 provides: “ Personal property shall in all cases be subject to execution on a judgment against the purchaser for the purchase price thereof, and shall in no case be exempt from such judgment and execution, except in ¿he hands of an innocent purchaser, for value, without
What little has been said by this court on the subject, is in the direction of giving the statute a literal interpretation. (O'Connor, etc., Co. v. Alexe, 28 Mo. App. 184; State to use v. Orahood, 27 Mo. App. 496, 499); so is the decision of the Kansas City Court of Appeals in Bolckow Mill Company v. Turner, 23 Mo. App. 103. It is worth of remark, that the legislature,
In reply to an argument based on the inconvenient result of this interpretation of the law, which has been strongly pressed upon our attention, we may say that such argument is inadmissible whqre the statute is unambiguous. The greatest of American jurists, with that remarkable clearness which distinguishes all his utterances, thus disposes of the argument ab inconmnienti : “ Where great inconvenience will result from a particular construction, that construction is to be avoided, unless the meaning of the legislature be plain; in which case it must be obeyed.” [Chief Justice Marshall in United States v. Fisher, 2 Cranch., 386.] In the case of Brandling v. Barrington, 6 Barn. & Cres. 467, Lord Tewterdew says : “I cannot forbear observing, that I think there is always danger in giving effect to what is called the equity of a statute, and that it is much safer and better to rely ón and abide by the plain words.” So Chief Justice Tindal, in Everett v. Wells, 2 Scott, N. R. 531: “It is the duty of the courts to confine themselves to the words of the legislature, nothing adding thereto, nothing diminishing.” It seems, indeed, a self-evident proposition that the laws and liberty of a nation would stand but on a slender foundation, if the judiciary would assume the power of first finding an ambiguity in a law where none exists, and then the power to resolve that ambiguity according to its own notions of right and expediency.
On the other hand, we cannot see how the supposed ambiguity in this law could be removed on any principle of legal construction. If an additional provision is to be added by the court, to the meaning of the words in their ordinary sense, that additional provision must be certain, and one which clearly emanates from the law itself. Where, with equal reason, several distinct and
We have thus discussed the subject in all its bearings, because we are fully aware of its importance to the commercial community, and because we are of opinion that the result, at which we are forced to arrive, is not in harmony with the general policy of our laws on the subject of sales. At the same time we must recognize the paramount power of the legislature to engraft on such general policy whatever exceptions it sees fit to engraft. The preference, which the law in the case at bar gives to the vendor, is one which the vendee may give him at any time, without the aid of the statute, in the absence of intervening attachments. The attachment lien itself is a mere creature of the statute, and, since the legislature can abrogate it altogether at any time, it would be folly to say that it cannot subordinate it to another meritorious claim, or "that it has not done so, when the language of the statute admits of no other definite interpretation.
These considerations lead to the conclusion that there was no error in the judgment of the court, and that it should be affirmed. So ordered.