10 Mo. 154 | Mo. | 1846
delivered the opinion of the Court.
Garth recovered a judgment against McCampbell, the Sheriff of Callaway County, and his securities. An execution was issued on the judgment and placed in the hands of Bailey, the Coroner. Influenced by the representations and promises of others, and believing that the money would be paid, Bailey returned the execution, “ satisfied by order of the plaintiff’s attorney ” without having received the money. Finding that his return rendered him liable for the debt, Bailey satisfied it. He then made a motion, which is the ground work of the proceeding, to amend his return, so that the execution may not appear to be satisfied, and so that in the name of Garth, he may have execution against McCampbell and his securities. This motion was overruled, and the cause is brought here.
It is clear that when an execution has once been satisfied, the judgment, which was the foundation of the writ, becomes extinguished, and can no longer be made the groundwork of any process. If a Sheriff has an execution against a defendant, and satisfies it with his own money,he cannot afterwards use it against him. The writ is functus officio. His remedy is an action for the. money advanced. Bailey admits that the execution of Garth has been satisfied. Then the judgment is extinct, and cannot be the foundation of another writ. Réed vs. Pruyn and Staats, 7 John. 428. The matter in controversy between these parties, was before this Court in another shape in the case of Bailey vs. Gibbs, 9 Mo. Rep. The party failed then because as the case appeared to the Court, one was endeavoring to compel a surety to refund money which he had paid for the principal. Bailey paid money for McCampbell, the Sheriff. No doubt McCampbell is liable to him for it. But on what principle was Gibbs liable to him who advanced the money, he being a mere surety for McCampbell? So that a recovery cannot be had against McCampbell’s securities without sustaining the principle that a person who voluntarily pays the debt of a principal, may recover the sum paid from a security for that debt, which is' directly against law. Yoder vs. Briggs, 3 Bibb, 228. Elmendorf vs. Tappen, 5 John. 176.
The other Judges concurring, the judgment will be affirmed.
