150 Mo. 626 | Mo. | 1899
Action on a sheriff’s bond.
I.
This case was transferred to this court by tbe Kansas City Court of Appeals on account of one of tbe judges of that court deeming tbe opinion rendered therein by that court, in conflict with tbe cases of State ex rel. Carroll v. Devitt, 107 Mo. 573; Milburn v. Gilman, 11 Mo. 64; Melcher v. Scruggs, 72 Mo. 406, and Howard v. Clark, 43 Mo. 344, decided by this court, and State ex rel. Bender v. Spencer, 30 Mo. App. 407, decided by tbe Kansas City Court of Appeals. Hnder section 6 of tbe Amendment of 1884 to Article YI of tbe Constitution this court is required to “rehear and determine” this ■ case, “as in case of jurisdiction obtained by ordinary appellate process,” notwithstanding tbe case would not otherwise fall within the jurisdiction of this court. Tbe purpose of this provision was to insure uniformity of decision between tbe courts of appeals and this court, and between tbe courts of appeals between themselves.
n.
Briefly stated tbe facts disclosed by this record are these: On tbe 24th of October, 1887, nine creditors sued out attach
No question is raised by relators as to the propriety of the payment of the judgments of Barton Brothers and Levin, so they will be eliminated,
"We will not consider whether the decision of the Kansas City Court of Appeals in the equity case was correct or not. That court had final jurisdiction in that case, and the judgment is binding upon all parties to that action. That judgment however affected only the parties to that action, who were Blank, Schwartz, Samter and the sheriff. It had no effect whatever upon the rights or priorities of any of the other attaching creditors. That judgment decided and decided only, that the claims of Schwartz and Samter should be post-. poned to the claim of relators. It did not attempt to adjust the priorities between relators and the other six attaching creditors whose attachments were prior to relators’. Thus far the sheriff is concluded by that judgment. Neither he nor his sureties can now or hereafter be heard to say that Schwartz and Samter have a priority over relators.
The Kansas City Court of Appeals held that the liens of the attaching creditors which were prior to relators’ have been lost by. their non-action and under sec. 6012, R. S. 1889, which limits the lien of judgments to three years, and that relators are entitled to priority over them all as a reward for their diligence. It is undoubtedly the law that where liens are equal a court of equity will reward diligence. [Bruce v. Vogel, 38 Mo. 105; Story, Eq. Jur. (12 Ed.), sec. 64.] But here the liens are not equal. Originally the relators’ lien was tire last in order of priority. Under the decision in the equity case the liens of Schwartz and Samter have been postponed to that of the relators, but that of relators has not been given priority over the other attaching creditors. Relators should be rewarded for their diligence to the extent of being paid
But the Kansas City Court of Appeals erred in holding that these prior creditors had lost their liens, for another reason. The prior creditors are not parties to this action, and their rights can not be adjudicated in this proceeding. The answer set up the existence of these prior liens, and while they exist it is a sufficient answer for the sheriff to make to relator’s demand for the fund. No judgment that the court has the
This case is here on a certificate of judgment, as authorized by section 2253. There is no abstract of the record filed. The statements filed do not set out the petition, either in full or in substance. Hence we are not informed what breaches of the bond were assigned. But none of the state
It follows therefore that the Kansas City Court of Appeals erred in reversing the judgment of the circuit court and in entering judgment against the defendants, and that the judgment of the circuit court was right.
The judgment of the Kansas City Court of Appeals is reversed and the judgment of the circuit court affirmed.