Harrison v. Renfro

13 Mo. 446

• Court: Supreme Court of Missouri
• Decided: July 15, 1850
• Status: Published

Opinions

NAPTÓN, J.

In the case of Swearingen v. Administrator of Eberius, 7 Mo. R. 421, the court quashed a fieri facias against the attached property and left the plaintiff to proceed with his judgment in the County Court. No opinion, was designed to be given in that case, by either Judge Scott or myself, in relation to the lien of an attachment or a judgment. I was not present when the opinion was filed, and Judge Scott filed a note of the ground upon which we put the case. In the subsequent case of Prewitt v. Jewell, the point in relation to the'lien of a judgment came up directly, and Judge Scott did then come to the conclusion that the lien of the judgment was lost by the death of the judgment debtor, so that if it had been deemed necessary in the case of Eberius’ Administrator v. Swearingen, a majority of the court would doubtless hare held in that case that the lien of the attachment was gone.

In this case of Swearingen v. Eberius’ Administrator, the defendant died before any judgment, and the administrator appeared to the action and a judgment was rendered against him. All that the court was called upon to do in that case, was to quash the execution, and this was dono. The judgment being against the administrator, was still available as a general judgment, and the. plaintiff only lost his priority of lien upon the property attached.

The present case is somewhat different. There is here a judgment against the deceased, without any personal service, and the defendant died after this judgment.(

a) The 17th section of the Attachment law declares the effect of a judgment by default. It declares “ such judgment shall bind only the property and effects attached, and no execution shall issue against any other property of defendant nor against his body, nor shall such judgment be any evidence of debt against the defendant in any subsequent suit.”(b)

It is obvious from this provision that this judgment by default cannot be made the basis of any proceeding in the County Court. It is equally clear that the court could not proceed and make the judgment a final one against a dead man. Nor, if such a judgment could have been rendered, could any execution have issued under the laws of this State.

Of what avail, then, can it be to proceed with the interplea ? So far as the question relative to the lien of judgment is important, our statute has stepped in and pointed out a mode in which that lien is retained and enforced. But the lien of an attachment has not been provided for. It is obviously a causas omissus.

What power has this court, or any court of chancery, to remedy this defect ? It is a mere statutory remedy to enforce a right, and the statute must be pursued. If the law is defective, the Legislature can alone supply the defect. The ordinary mode of enforcing the right is still open to the suitor. The action is not lost. The suit can be revived against the administrator, and the question of title can be as well tried in such a proceedipg as in the present. Nothing is lost but the lien on the specific property attached, and as the supposed owner is dead, and. incapable of farther fraud or injustice, this may be a very unimportant matter to the plaintiff. The Circuit Court merely dismissed the interplea for the plain reason that its further investigation could lead to no practical result. The plaintiff may still proceed with his action; have it revived against Renfro’s administrator, and if there he no prior creditors, have the same question of property as advantageously adjusted under our Administration law, as he could have in this interplea. Judgment affirmed.

(a) See Miller v. Doan, 19 Mo. R. 660.

(b) See Smith v. McCutchen, 38 Mo. R. 415. Whore a general judgment is erroneously rendered it will not authorize an execution except against the property attached — Clark v. Halliday, 9 Mo. R. 702.