Wyatt v. Fromme

70 Mo. App. 613 | Mo. Ct. App. | 1897

Gill, J.

In December, 1883, Wyatt obtained a judgment against Fromme, Elston, and Hamilton, the two last named parties with one Robinson (who was not served with process) being securities for Fromme on the- note sued upon. In November, 1893, an execution was issued on this judgment, the same beiDg ordered out by J. R. Edwards, who claimed to be the assignee of the judgment. Thereupon defendant Fromme filed his motion to quash the execution on the alleged ground that the judgment had been paid and satisfied prior to assignment. At the trial of this motion the circuit court sustained the same, and Edwards, the alleged assignee of the judgment, appealed.

execution: sat-quashing?ment: assignment. It is clear that the judgment quashing the execution must be affirmed. If the evidence introduced in defendant’s behalf is to be credited — and this must be left to the finding of the trial judge — then Ik6 judgment in question was fully paid an<3. satisfied long before Edwards took an assignment thereof. And if the judgment was paid— whether by Fromme, his securities, or other persons— then clearly the; execution was improvidently issued and should be quashed. The only purpose of an execution is to enforce the .judgment; and if the latter has been paid off then clearly the former must be treated as satisfied. Mill Company v. Sugg, 83 Mo. 476.

judgment: “tora^eandof: cUent' There is nothing here to show that when Edwards (acting for the Robinson estate, of which he was administrator) and Elston (another of Fromme’s securities) paid the judgment to Wyatt, it was intended as a purchase and not payment of the judgment. Wyatt testifies the contrary; he says the judgment was paid absolutely, and that it was about ten years thereafter that Edwards applied to and induced him (Wyatt) to make the written assignment attached to the record. An assignment at that date could have no effect, since the judgment had long prior thereto been paid, and was then extinct. There is not a syllable of evidence that Wyatt agreed, at the date he received the money due on the judgment, that the same should be kept alive and transferred to Edwards or any of the securities. Edwards testifies to an understanding of that kind had with Wyatt’s attorneys; but there is no proof whatever that said attorneys had any authority to bind Wyatt by such an agreement. Their employment as attorneys to prosecute Wyatt’s case gave them no authority to sell or assign the judgment obtained.

As to what Fromme may have done toward repaying his securities, and whether or not he had settled with them or their heirs prior to the issue of this execution, is of no consequence in the present case. It is sufficient now to state that, according to the evidence, the judgment, which forms the basis of the execution in question, was paid off and extinguished long before the execution was issued and long prior to the pretended assignment to Edwards.

Judgment affirmed.

Ellison, J., concurs; Smith, P. J., not sitting.