81 Mo. App. 636 | Mo. Ct. App. | 1899
This is a motion to qnash an execution upon a judgment in favor of respondent and against appellant for $805, rendered October 19, 1898. A remittitur of $7 of said judgment was filed in the circuit court on the third of November, 1898. Upon a subsequent appeal to this court the judgment was affirmed, but neither here nor in the lower court was any new judgment rendered after the remittitur was filed. On May 25, 1899, an execution was taken out on said judgment, which recited the said remittitur. On the same day the present motion to recall and set aside such execution was filed, which after a hearing the court overruled, hence this appeal.
When the remittitur was filed the integrity of the former judgment was destroyed, and it became the duty of the party filing such remittitur to cause a new judgment to be rendered for the amount of the former, less the sum- which had been voluntarily relinquishd. This might have been done either in the court of first instance, or upon the former -appeal to this court. But until it was done there was nothing upon which to base an execution, which must always rest upon a valid judgment -and run in exact and strict accord therewith. Our conclusion upon -the point under review is supported by the following language of Judge Grantt: “When a remittitur is entered, a new entry of the judgment for the amount should be made.” Haynes v. Town of Trenton, 108 Mo. loc. cit. 134; and also by the direct adjudication of the supreme court in Schilling v. Speck, 26 Mo. 489. It follows that the circuit court erred in refusing to sustain the motion to quash. Its judgment on said motion is therefore reversed and the cause remanded, with directions to proceed in conformity with the views herein expressed. It is so ordered.
