Mullen v. Hewitt

103 Mo. 639 | Mo. | 1890

Gantt, P. J.

The ;only question to be determined in this case is the sufficiency of the petition. The circuit court sustained a demurrer, and plaintiff has brought the case here.

The purpose of the bill in this case, succinctly stated, is to oollect a dormant judgment by a decree in equity, without reviving the judgment or being entitled to an execution.

The bill on its face discloses that the judgment it seeks to collect was rendered December 6, 1877, against Charles Hewitt for $3,878.10, and this action was not commenced until February 15, 1888. The only legal step ever taken to collect this judgment was the issuance of an execution at the February term, 1878, which was returned at the April term, 1878, of the circuit court of the city of St. Louis, unsatisfied. So that, at the commencement of this suit, plaintiff had no judgmept upon whichhe could issue an execution at law; but he asked the court to compel Marcus Wolff and Francis Flanagan to account to plaintiff for certain rents, alleged to be the property of Hewitt, and that Hewitt’s interest in the lands might be sold.

It is a general rule that a creditor, before obtaining a judgment and execution, has no certain claim upon the property of his debtor and has no concern with conveyances of any kind affecting their property, for the very good reason that he may never obtain a judgment, and if he does not he cannot be injured by any disposition of the property. Crim v. Walker, 79 Mo. 835 ; Fisher v. Tallman, 74 Mo. 39, and cases cited. “And before resorting to chancery, a creditor must first exhaust his legal remedies, whatever they may be. In doing so he may create a lien upon the property sought to be subjected.” Merry v. Fremon, 44 Mo. 518.

Both of these propositions are admitted by the appellant, but he maintains that his judgment, though dormant, is still a judgment, because it is “res adjudicata ” as to its claim, its amount and merits, and that his right to the aid of chancery does not depend, either upon his having a lien, or the right to issue an execution.

That all defenses prior to the obtaining of plaintiff’s judgment would be merged, should he bring an action on his judgment at any time before it is barred by the twenty years’ prescription, is true. But after ten years, under our statute, no scire facias canissue to revive it, nor can an execution be issued upon it. How much better is the attitude of the holder of such a judgment than any other general creditor of the defendant.

We have not found the precise case in the judicial history of this state, but the case of Crim v. Walker, 79 Mo. 335, presents a strong analogy. In that case plaintiff had obtained judgment against Madison Walker, in Indiana. Upon that judgment suit was brought in Jasper county, Missouri, against said Walker. There were two counts in petition, the first to obtain judgment on the Indiana judgment in Missouri, the second, to set aside certain conveyances made by Walker as fraudulent. This court held that the plaintiff had no standing, until he obtained a new judgment in this state, to question the fraudulent character of the conveyances made by Walker. In that case, by the constitution of the United States, full faith and credit was given to the judgment, but it did not bring with it into this state the efficiency of the judgment upon property or upon persons to be enforced by execution. To give it that force it must be made a judgment here. So it was held by the United States circuit court for the southern district of New York in Claflin v. McDermott, 12 Fed. Rep. 375, that a judgment creditor, who had obtained judgment in California,' could not invoke the aid of the federal court in New York to enforce his claim, until he had brought his action anew and obtained a judgment in New York.

To the same effect is Walser v. Seligman, 13 Fed. Rep. 415. In all these cases and many others cited by them, the judgment definitely settled that plaintiff was a creditor, but his rights were in no sense superior to a general .creditor, when he sought to interfere with the disposition of defendant’s property. In other words, the judgments were without that sanction which would render them operative, and in this respect they are in all respects similar to the judgment declared on in this case. That it was once determined judicially that plaintiff was a creditor of defendant Hewitt is unquestioned, but plaintiff has slept upon his rights until his judgment has lost its vitality and efficacy, and nothing but a new action will restore it and place plaintiff in a position to question the conveyances and dispositions of property by defendant. Until then these matters do not concern him.

Seeing that plaintiff has no judgment upon which he can stand we might stop here. But plaintiff has not pursued his legal remedies. The issuing of one execution ten years ago is not that diligence that will be exacted at’his hands. He can sue on this judgment and renew it, take out his execution, levy upon any legal or equitable interest defendant Hewitt may have in the real estate, and then, if fraudulent obstructions are placed in his way, he may with confidence call upon the courts of equity for assistance, but until then he cannot be said to have exhausted his legal remedies.

As to the other ground of demurrer, that the bill is multifarious, wo think that also well taken. There is no such common purpose or design alleged as will justify the holding of one set of these defendants in court while plaintiff is litigating with others over matters in which they are not even charged with any complicity. Our statute is liberal, but it will not authorize the indiscriminate blending of actions in which the defendants are not the same, and have no common interest with the plaintiff or each other. The petition in Bobb v. Bobb, 76 Mo. 419, is no justification for this bill.

The circuit court properly sustained the demurrer, and its judgment is affirmed.

All the judges of this division concur.