218 S.W. 359 | Mo. Ct. App. | 1920
The State of Missouri, at the relation of Seebert G. Jones, Circuit Attorney of the City of St. Louis, brought suit against The Howe Scale Company, duly incorporated under the laws of the State of Illinois, to recover a fine of "not less than $1000, as provided by section 1026, Revised Statutes of Missouri, *353
1899" (now section 3040, Revised Statutes of Missouri, 1909) because of its alleged failure to comply with the requirements of section 1025 of Act approved March 24, 1903, Laws of Missouri, 1903, page 121 (now section 3039, Revised Statutes of Missouri, 1909), which requires foreign corporations doing business within this State to file, in the office of the Secretary of State, a copy of its charter or articles of association, etc. In due course a fine of $1000 was assessed and judgment rendered thereon against defendant. An appeal was taken to the Supreme Court, which appeal, however, was transferred to this court (
Defendant's motion to quash the execution assigns some nineteen grounds in support thereof, most of them raising various constitutional questions, all of which the Supreme Court held had not been timely raised by defendant below and were, therefore, not involved in the present appeal. [State ex rel. Jones v. Howe Scale Co., 210 S.W. 8.]
It will not be necessary to set out the defendant's motion to quash in that it appears in extenso in the case last cited.
"If any person against whose property any execution or order of sale shall be issued, apply to any judge of the court out of which the same may have been issued, by petition, verified by oath or affirmation, setting forth good cause why same ought to be stayed, set aside or quashed, reasonable notice of such intended application being previously given to the opposite party, his attorney of record or agent, such judge shall thereupon hear the complaint."
This point is not well taken.
The purpose of section 2244, Revised Statutes of Missouri, 1909, is to enable a defendant, when the court is in vacation or during the recess of the court, to apply to any judge thereof by petition verified by affidavit, to obtain a stay of execution until he can be heard in court as to whether such execution shall be set aside or quashed; but this does not exclude the ordinary remedy by motion to quash unsupported by affidavit made in open court in term time. [Parker v. Hannibal St. Joe Ry. Co.,
This point is without merit in that the new section enacted in 1903 is for all practical purposes but a reenactment of the old section with but one additional *355 clause added thereto. It is readily apparent from a reading of the bill as set out in extenso in Session Acts 1903, page 121, that it was merely for the sake of brevity and convenience that section 1025 was "repealed and a new section enacted in lieu thereof," instead of accomplishing the same purpose by way of amendment. The adoption of the new section 1025 in lieu of the original section 1025 does not fall within that class of cases where a section of the statute is repealed and thus a separate section providing a penalty for the violation of such repealed section becomes ineffective because there is no longer any statute for the violation of the provisions of which such penalty can be invoked.
We have come to the conclusion that this point is well taken and that no interest on this fine can be recovered. While the proceeeding which resulted in rendering the judgment assessing the fine was clearly a civil action (State ex rel. Jones v. Howe Scale Co.,
We hold that section 7181, Rsvised Statutes of Missouri, 1909, which provides that interest "shall be allowed on all money due upon any judgment or order of any court from the date of rendering the same until satisfaction be made by payment, accord, or sale of property . . . is not intended to include judgments which are penal in their nature and have for their sole object the punishment of an offender." Therefore we are of the opinion and so hold that the rule as to interest as applied to judgments in criminal cases should apply here. [See People v. Sutter St. Ry. Co.,
For the reason assigned herein the order of the court overruling the motion to quash the execution is hereby reversed and the cause remanded for further proceedings not inconsistent with the views herein expressed. Reynolds, P.J., and Allen,J., concur.