49 Mo. 425 | Mo. | 1872
delivered the opinion of the court.
The nlaintiff instituted a suit against defendant Quinn for the delivery of personal property, and Quinn, with the other defendants, executed a bond claimed to have been given under section 4 of the act (Wagn. Stat. 1024), and retained the property.
The plaintiff obtained judgment, the- damages were assessed, and judgment rendered against the obligors in the bond for the damages so assessed and costs, according to the provisions of section 14. (Wagn. Stat. 1026.) Execution was issued and levied on the real estate of E. A. Holcomb, one of said obligors. Holcomb thereupon filed a motion to quash the execution, which was sustained, and the plaintiff appeals.
The motion was based upon the ground that the bond did not conform to the statute, chiefly in this: that it was conditioned for the delivery of the property to the sheriff instead of to the plaintiff, as required by section 4 ; hence no summary judgment could be rendered upon it. This is not a statutory bond, and from its want of conformity to the statute, in other things more glaringly even than in the particular named in the motion, was not designed to be such. (Waterman v. Frank, 21 Mo. 109; Selmes v. Smith, id. 527.) The plaintiff had furnished his bond, and the one upon which judgment was attempted to be rendered may be a good indemnity to the sheriff for failing to deliver the property to the plaintiff as was his duty, or may furnish a ground of action to the plaintiff, but it does not furnish one upon which the statute authorizes a summary judgment.
Nothing is better settled than that in these summary proceedings against parties not served with process, the statute must be strictly pursued; and they cannot be had against those who have not submitted themselves to the operation of the statute. These bondsmen never agreed to deliver the property to the plaintiff, nor did they authorize a summary judgment to be entered against them, hence it has no more force than though rendered against a stranger without process. A motion to set aside the judgment or quash the execution, or both, is the proper remedy, where a matter is within the control of the trial court; it is better, in
The judgment is affirmed.