| Mo. | Jul 15, 1850
Lead Opinion
In the case of Swearingen v. Administrator of Eberius, 7 Mo. R. 421, the court quashed a fieri facias against the attached property and left the plaintiff to proceed with his judgment in the County Court. No opinion, was designed to be given in that case, by either Judge Scott or myself, in relation to the lien of an attachment or a judgment. I was not present when the opinion was filed, and Judge Scott filed a note of the ground upon which we put the case. In the subsequent case of Prewitt v. Jewell, the point in relation to the'lien of a judgment came up directly, and Judge Scott did then come to the conclusion that the lien of the judgment was lost by the death of the judgment debtor, so that if it had been deemed necessary in the case of Eberius’ Administrator v. Swearingen, a majority of the court would doubtless hare held in that case that the lien of the attachment was gone.
In this case of Swearingen v. Eberius’ Administrator, the defendant died before any judgment, and the administrator appeared to the action and a judgment was rendered against him. All that the court was called upon to do in that case, was to quash the execution, and this was dono. The judgment being against the administrator, was still available as a general judgment, and the. plaintiff only lost his priority of lien upon the property attached.
The present case is somewhat different. There is here a judgment against the deceased, without any personal service, and the defendant died after this judgment.(
It is obvious from this provision that this judgment by default cannot be made the basis of any proceeding in the County Court. It is equally clear that the court could not proceed and make the judgment a final one against a dead man. Nor, if such a judgment could have been rendered, could any execution have issued under the laws of this State.
Of what avail, then, can it be to proceed with the interplea ? So far as the question relative to the lien of judgment is important, our statute has stepped in and pointed out a mode in which that lien is retained and enforced. But the lien of an attachment has not been provided for. It is obviously a causas omissus.
What power has this court, or any court of chancery, to remedy this defect ? It is a mere statutory remedy to enforce a right, and the statute must be pursued. If the law is defective, the Legislature can alone supply the defect. The ordinary mode of enforcing the right is still open to the suitor. The action is not lost. The suit can be revived against the administrator, and the question of title can be as well tried in such a proceedipg as in the present. Nothing is lost but the lien on the specific property attached, and as the supposed owner is dead, and. incapable of farther fraud or injustice, this may be a very unimportant matter to the plaintiff. The Circuit Court merely dismissed the interplea for the plain reason that its further investigation could lead to no
(a) See Miller v. Doan, 19 Mo. R. 660.
(b) See Smith v. McCutchen, 38 Mo. R. 415. Whore a general judgment is erroneously rendered it will not authorize an execution except against the property attached — Clark v. Halliday, 9 Mo. R. 702.
Dissenting Opinion
dissenting. Harrison sued Renfro, by petition in debt, and attached two slaves in the possession of his mother, the defendant here. Upon proof of publication, at the April term, 1846, he obtained judgment by default against the original defendant, and also against the defendant here, upon her interplea. The verdict and judgment thus obtained against Mrs. Renfro having been reversed by this court at the January term, 1847, a second trial of the issue between her and the plaintiff took place at the spring term, 1848, and resulted again in a verdict against her. A new trial was granted, however, the propriety of which the state of the record does not enable us properly to consider. The defendant in the original suit, and against whom the judgment by default for the debt and damages continues unreversed, having died in the month of May, 1847, at the October term, 1848, the interpleader moved the court to stay all further proceedings and allow' her the possession of the attached slaves. The court having adjudged accordingly, and dismissed the suit, the plaintiff excepted, and lias brought the case hero.
As reliance to sustain the judgment below seems mainly to be cast upon the opinion of a former bench of this court, in the case of Swearingen v. The Administrator of Eberius, an expression of the respectful disconcurrence which is entertained with the reasoning and conclusion of the able Judge who prepared it, might perhaps well enough bo foregone by demonstrating the want of sufficient analogy between that ease and the present one, to invest it with the authority here claimed for it. It is, however, deemed most appropriate to remark, that being unable to perceive less legal merit in commencing and maintaining a proceeding by attachment than in the more ordinary manner, any valid reason why such a suit should not, in the very words of the statute which authorizes it, ‘‘be proceeded on to final judgment in like manner as in ordinary actions,” has not been to my mind rendered apparent by the argument here. It is true that no execution could issue against a deceased defendant, but that, it is apprehended, does not meet even the general question, much less the special one now under consideration. Unless indeed equity would be powerless, after years of diligence and expense, to enforce a lien thus sought to be perfected, it is of course readily perceived how the final judgment, which is alone sought, might be thereby rendered available to the plaintiff. The dismissal of such a suit consequently, even had no judgment been rendered against the original defendant, could alone be predicated upon a more restricted estimate of the powders and duties of a Chancellor, than is entertained by the author of this dissent.
In this case, however, there was and is a specific and formal judgment against the original defendant, so that the only question which remained for adjudication, at the time the suit was dismissed, was between living parties on the interploa of the defendant here. The court before whom that issue was pending, was certainly not only competent to determine it, but, it -would seem, even peculiarly appropriate that it should retain the suit for the purpose of doing so. It would thereby not only more readily than in any other manner settle the question as to the ownership of the property, thus removing the impediment which would otherwise exist to a safe and proper administration upon the effects of the deceased, hut if the verdict of the jury was again adverse to the claim of the defendant, again found the property to have been properly attached by the plaintiff, and of course subject to his lieu, the 54th, 55th and 56th sections of the Snd article of the Administration law would furnish either to the administrator in discharging, or to the