City of Warrensburg v. Simpson

22 Mo. App. 695, 1886 Mo. App. LEXIS 350

• Court: Missouri Court of Appeals
• Decided: June 28, 1886
• Status: Published

Opinion

Ellison, J.

I. The point is made by defendant bhat the alleged levy made by the sheriff under the first execution discharged the judgment. Conceding a levy was made, yet, under the undisputed facts in this case,, bhe judgment was not discharged, for the property was restored to the owner. It is true that when sufficient personal property of a defendant in an execution, is-Levied upon it operates as a satisfaction, if nothing more appears, but when it is restored to the debtor there is no satisfaction. State ex rel. Colvin v. Six, 80 Mo. 61; Thomas, Ex'r, v. Cleveland, 33 Mo. 126. “If after le>y apon sufficient personal property the court orders that bhe judgment be not enforced, the order releases the-Levy, but does not discharge the judgment.” 80 Mo. supra.

II. Defendant’s next point is that the taking of his-body and his imprisonment was a discharge of the judgment against himself and his sureties. I am not aware of any law supporting this contention. One object of the imprisonment, in this sort of case, is to compel payment of the fine. Sect. 4992, Rev. Stat.

III. The next point relied npon is that an attorney’s fee of two dollars and fifty cents for conviction before the mayor, and five dollars for conviction on appeal to the criminal court, should not be taxed as costs.

As to this, it would be sufficient to say that the proper mode of relief in such case would be a motion to re-tax costs.

The execution should not be quashed on account of a misconception by the clerk in including in the amount thereof some improper item.

However, I am of the opinion the fees, as charged herein, are properly due the city attorney. When Warrensburg organized, under the statute, as a city of the fourth class, it had then in force an ordinance allowing the attorney two dollars and fifty cents fee for conviction before the mayor and, by separate section, five dollars for conviction on appeal.

Subsequent to this organization the council passed an ordinance in relation to fees of city attorney, in which he is allowed one hundred dollars per annum, and “ for every case of conviction before the mayor, the sum of two dollars and fifty cents.” Said council likewise passed an ordinance repealing “all ordinances heretofore passed, which are in any way inconsistent herewith.”

The latter ordinance, providing for a salary of one hundred dollars and fee of two dollars and fifty cents for conviction before the mayor, is not inconsistent with section seven, of the old ordinance, providing for a fee of five dollars for conviction before the appellate court.

We discover no error justifying a reversal and the judgment is, therefore, with the concurrence of the other judges, affirmed.