Burnham, Hanna, Munger & Co. v. Blank

49 Mo. App. 56 | Mo. Ct. App. | 1892

Ellison, J.

Plaintiffs are subsequent, and defendants are prior, attachment creditors of a common debtor. Defendants’ suits were regularly instituted, process was regularly issued and levied upon the attached property, as well as regularly served upon the (defendant) debtor. Before the term at which the writ was returnable, the debtor made a confession of judgment, regular in all respects as provided by sections 2229 to 2231, Revised Statutes, 1889. Judgment ivas entered on this confession as provided by the latter section, reciting that it was upon “ a statement in writing for confession of judgment.” No reference was made, either in the confession or judgment, to the attachment suit or property, though they both bear a number corresponding to the number of the docket. Execution issued on this judgment, and was ordered satisfied out of the proceeds of the property which had been sold by order of the court.

This proceeding by the subsequent attaching creditors is, in effect, to postpone and nullify the attachment lien of the prior attaching creditors, and the question for our decision is, does the confession of judgment made and rendered as above shown have the effect of discharging the property from the prior attachments so as to let in the subsequent attachments? We think it does.

“The rights and priorities of attaching creditors, as between themselves, are matters of strict law. If the first attacher once loses his lien, the rights of the junior attachers intervene, and the lien of these attachments takes precedence.” Adler v. Anderson, 42 Mo. App. 189. And this, without regard to the good or bad faith of the parties. Adler v. Anderson, supra. “The rule is that the plaintiff must be able to trace his execution lien through the usual course of judicial procedure to the original levy under the writ of attachment.” The rendition of a judgment in due form and course of law, and the issuing of an execution on that judgment, and duly charging the property therewith, are as necessary as the attachment itself. Drake on Attachments, sec. 262. I have not found where the foregoing statements of the law have been controverted. It necessarily follows from the foregoing propositions, that the judgment rendered must be founded upon, and be the result of, the original process of attachment. If the judgment taken is not such, then the acceptance of such other judgment must be considered as (in effect at least) an ■abandonment of the proceedings under the attachment writ. In the case at bar, the judgment taken is not founded on the original process'. It is a formal judgment by confession. The confession is statutory in form, and the judgment entered is based on this. There is not even an indirect reference to a pending action" of •any sort. There is no reference to service of process ■or appearance of the debtor defendant. The court •does not render the judgment upon the appearance of ■defendant, or by reason of service of process, but merely from “being satisfied that the said defendant executed the said statement in writing and made the affidavit required thereto.” I am fully persuaded that the judgment rendered stands entirely apart from, and independent of, the process in the cause. It is contemplated that in a judgment by confession there will be no action instituted by original process, but I ■do not understand that a judgment by confession ■cannot be had merely because an action was pending for the same debt.

It is suggested that an offer of judgment under section 2191, Revised Statutes, 1889, after the institution •of an action and an acceptance thereof followed by a judgment thereon even though before return day of the writ will not affect the lien of the first attachment. It was so held in Boyd v. Furniture Co., 38 Mo. App. 210, ■and we fully coincide in that decision. But in that instance the judgment is founded upon the process issued, and could not be rendered without process first had. It is merely a mode authorized by statute of ■obtaining judgment on the original process and obviates proof of what is admitted by the offer. It is no more, in effect, than if the admission was made by answer, or than if the defendant on trial had admitted his indebtedness. ' •

The objection to plaintiffs’ mode of attacking the proceeding cannot be allowed at this stage.

We will affirm the judgment.

All concur.