Catron v. Lafayette County, 125 Mo. 67

125 Mo. 67 | Mo. | 1894

Brace, J.

This is an appeal from a judgment of the circuit court of Lafayette county quashing a writ of execution issued on a judgment in favor of the appellant against the respondent, rendered in said court on the twenty-ninth day of October, 1887, for the sum of $8,811.36, on which the respondent on the twenty-first day of November, paid the sum of $12,392.19, being the amount of the face of the judgment with ten per cent, simple interest thereon from the date thereof. The rate of interest which the judgment should bear was not stated in the judgment.

I. The bonds upon which the judgment was recovered, were issued in 1867, bearing interest at the rate of ten per cent, per annum, to be annually compounded.

-Our statute provides that all judgments for “money upon contracts bearing more than six per cent, interest shall bear the same interest borne by such contracts and all other . judgments for money shall bear six per cent, per annum.” R. S. 1889, sec. 5974; R. S. 1879, sec. 2725.

In State v. Vogel, 14 Mo. App. 187, it was held that “in order that the judgment should bear interest, it was not necessary that the court delivering the judgment should say so and make this statement a part of the judgment, because the statute expressly provides that every judgment shall bear interest. In order to determine the amount of interest which the judgment bears, if the judgment is upon contract, it is only necessary to ascertain from the record what interest the contract bore. * * * It is not only the right, but the duty of the clerk, to look to the record in issuing execution to determine the legal effect of the judgment.”

This ruling was followed in Evans v. Fisher, 26 Mo. App. 541, and approved by this court in Crook v. Tull, 111 Mo. 283. And this construction of the statute, evidently correct, may now be considered settled law. The clerk in this case looking at the record found that the contracts upon which the judgment, was rendered bore interest at the rate of ten per cent, per annum compounded annually; that the amount paid on the judgment lacked $594.53 of discharging the same when the interest was thus computed in accordance with the terms of the contract, and issued the execution for that amount which was quashed by the court.

It is not disputed that the execution is for the proper amount when the interest on the contract is thus computed; nevertheless it is insisted that the judgment will not sustain an execution for that amount. The only reason assigned for this contention is that statutes allowing interest being in derogation of common law are to be strictly construed, and that in Raun v. Reynolds, 11 Cal. 19, the supreme court of that state under the stress of that canon of construction, in construing a similar statute allowing parties to agree in writing for an unlimited rate of interest, by very ingenious, but as it seems to us rather specious, reasoning, founded entirely upon the particular wording of that statute, held that interest upon a judgment could not b'e compounded. The wording of our statute is different, and will not support that reasoning.. Its meaning is plain and obvious, and leaves no room for the application of that canon of construction, and this contention has, really, nothing to stand upon.

II. The execution was levied upon certain real estate described in the sheriff’s return, and it is stated in that part of the brief of counsel for respondent headed “abstract of record,” that “this execution was levied as shown by the return on property of defendant, being the ‘public poorhouse and farm’ in said county.” The return of the sheriff as set out in the transcript of the record, and in appellant’s abstract shows nothing of the kind, nor does it appear anywhere else in the record. If this fact had been made to appear on the hearing of the motion, it would have afforded good ground for quashing the levy, such property being exempt therefrom (R. S. 1889, see. 4904, and authorities cited by counsel for respondent), and thus the whole force and effect of the execution could have been neutralized. But as in this state every party in whose favor any. judgment is rendered may have an execution in conformity therewith (R. S. 1889, sec. 4895), and as the execution in this case conformed to the judgment, there was no ground for quashing the execution. The judgment of the circuit court will, therefore, be reversed.

All concur.