Call v. Moll

89 Mo. App. 386 | Mo. Ct. App. | 1901

BLAND, P. J.

Plaintiff filed in the circuit court of Cape Girardeau county, a petition for writ of scire facias to revive a judgment, which, he alleged he had recovered against defendants in said circuit court, on January 4, 1894, for $598. The answer or return of defendants to the writ admitted the rendition of the judgment as alleged in the petition and pleaded payment of the judgment. On August 24,, 1900, the circuit court rendered the following judgment:

“Joseph H. Call against John Moll and Gus Moll. J

Revival of Judgment.

“Oome now the parties, plaintiff and defendant, by their respective attorneys, and the cause coming on to be heard, is taken up and submitted to the court, and the court having seen and heard the evidence in this cause, finds the issues for the plaintiff in the sum of one hundred and twelve and forty-five one-hundredths dollars. Comes now the defendant and files his motion and demands a special finding of facts, in accordance with the statutes herein, whereupon the court finds:

“Joseph H. Gall 1 v. 1-John Moll. J

Special Finding of Pacts.

“This cau'se coming on to be heard, and the court' having heard the evidence as well as arguments of counsel, and the defendant’s counsel having by motion demanded a special finding of facts in accordance with the statute, in obedience and in response to said motion the court doth find as follows:

“1. That the judgment was obtained in this court on the fourth day of January, 1894, in the sum of $558 with interest from date at the rate of six per cent; that on the twenty-first day of February, 1894, there was issued upon said judgment an execution, under which said execution certain personal property was sold and the net proceeds thereof, after paying the costs, was $53.20, which should go as credit upon said judgment; that' under said execution one Henry Eoloff was garnished as a creditor of the defendant, John Moll, and that in response to said garnishment the said Henry Eoloff paid a net sum on said judgment and indebtedness of $20.60, which said sum should go as a credit on said judgment; that under the same execution, and on the same date, and under the same circumstances, one Edward Mavers was garnished and paid on said judgment a net sum of $12.60, which should go as a credit upon said judgment.

“2. The court further finds that at the time of the execution of Üie note, which was subsequently merged into the judgment herein, the plaintiff and the defendant, John Moll, were jointly indebted to a concern known as the Harrison Machine Works in the sum of $594; that it was mutually agreed and understood between the parties that this indebtedness should be jointly paid by them, and that if the defendant, John Moll, should pay, or relieve from payment thereof, the plaintiff, Joseph H. Call, he should have credit on said note, or judgment, if rendered before said payment, in the sum of one-half of the plaintiff’s share in said indebtedness; that subsequent to the rendition of said judgment, in pursuance of said agreement, the defendant, John Moll, paid, or caused to be paid, principal and interest for and on behalf of the plaintiff, and that his half of said indebtedness so paid was the sum of $387.29, which said sum the court finds was by agreement of parties to be entered as a credit upon said judgment; that taking the said sum of $387.39, and adding thereto the sum of $86.40, realized under said execution as aforesaid, the defendant is entitled as a credit on such judgment of a sum of $463.69; that, allowing him interest on said judgment at the rate of six per cent, and on the payment at a like rate, the court finds there is yet unpaid on said judgment the sum of $112.45. The court finds that for the remainder of the judgment the same should be revived.

“It is therefore considered, ordered and adjudged, that said judgment against John Moll, defendant, in favor of Joseph Oall, plaintiff, be revived in the sum of one hundred twelve and forty-five one-hundredths dollars, and that the plaintiff, Joseph H. Oall, have and recover of and from the defendant, John Moll, the last-mentioned sum, together with his costs in this behalf expended, and that he have hereof execution therefor.”

Erom this judgment plaintiff appealed. No motion for new trial was filed nor did the plaintiff preserve the evidence by bill of exceptions. All we have before us, therefore, is the record proper. The contention of appellant is that the court committed error in finding that the judgment- was for $558 against the solemn admission of the defendants that it was for $598, and that the court also erred in its calculation of interest and in the application of the partial payments on the judgment. No reason is assigned nor facts stated by the court to justify the finding against the admission that the judgment was for $558 instead of $598, this finding was erroneous. It is a universal rule of practice that an admission by answer of a substantive fact alleged in the petition is indisputable on the trial of other issues raised by the same pleadings and the finding of the court that the judgment was rendered for $558 instead of $598 is against a fact which respondent was estopped to deny by the record he had made and which the court was equally bound to observe in its finding of the facts. Laney v. Garber, 165 Mo. 355; Cloud v. Inhabitants of Peirce City, 86 Mo. 357. The basis of the court’s calculations from which it arrived at the conclusion that the balance due on the judgment was $112.45 being erroneous, the result of the calculation is necessarily erroneous. To arrive at the correct result the account must be recast, but it is impossible to do this here for the reason that the dates of the several payments are not given in the findings of the facts by the court We are therefore driven to the necessity of reversing the judgment and remanding the cause for retrial. On retrial, in respect to the application of the several payments the court may find to have been made on the judgment, the court should observe the rule for applying partial payments announced in the case of Riney v. Hill, 14 Mo. 500.

Judgment reversed and cause remanded.

Judge Bond concurs; Judge Goode in the result.