Johnson v. Sherrodd

Missouri Court of Appeals

Johnson v. Sherrodd

125 S.W. 212, 141 Mo. App. 366, 1910 Mo. App. LEXIS 92

DecidedFebruary 7, 1910

StatusPublished

This text of 125 S.W. 212 (Johnson v. Sherrodd) is published on Counsel Stack Legal Research, covering Missouri Court of Appeals primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Johnson v. Sherrodd, 125 S.W. 212, 141 Mo. App. 366, 1910 Mo. App. LEXIS 92 (Mo. Ct. App. 1910).

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Opinion

COX, J.

Judgment was obtained in the circuit court of Christian county, Missouri, in favor of the Bank of Sparta, against I. F. Adams, J. A. Sherrodd, [368]*368U. H. Bradley and Adam Johnson, upon a promissory note signed by all of these defendants. Afterwards the debt was paid to the bank by Adam Johnson, and the bank assigned the judgment to him and execution was issued thereon in the name of the bank for the benefit of Johnson. This execution was sent to the sheriff of Taney county, who immediately levied upon certain lands in that county as the property of Sherrodd. Sher-rodd filed a motion in the Christian county court to quash this execution and the levy thereunder. By agreement of parties the case was transferred to Taney county, the matter heard there, the court overruled the motion to quash, and defendant has appealed.

This record presents but one question for our determination, and that is whether one of several joint debtors, against whom judgment has been obtained, can pay off the debt, take an assignment of the judgment, and collect the same from his co-debtors by execution. That this cannot be done, where the debt is a joint one, has been unformly held by the courts of this country. [68 L. R. A. 515 (note).]

And it has been expressly held by the Supreme Court in this State that in such a case, the execution should be quashed upon motion of a co-debtor. [Hull v. Sherwood, 59 Mo. 172.]

It follows that the motion to quash in this case should have been sustained. If there are equities between the judgment debtors to be adjusted, this should be done in an appropriate proceeding in equity, or if the party who paid the judgment was surety only, he might proceed, under the statute, by motion for judgment against the principal or a co-surety, but he cannot collect what may be due him in the manner attempted in this case. The judgment will be reversed.

All concur.

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COX, J.

Judgment was obtained in the circuit court of Christian county, Missouri, in favor of the Bank of Sparta, against I. F. Adams, J. A. Sherrodd, [368]*368U. H. Bradley and Adam Johnson, upon a promissory note signed by all of these defendants. Afterwards the debt was paid to the bank by Adam Johnson, and the bank assigned the judgment to him and execution was issued thereon in the name of the bank for the benefit of Johnson. This execution was sent to the sheriff of Taney county, who immediately levied upon certain lands in that county as the property of Sherrodd. Sher-rodd filed a motion in the Christian county court to quash this execution and the levy thereunder. By agreement of parties the case was transferred to Taney county, the matter heard there, the court overruled the motion to quash, and defendant has appealed.

This record presents but one question for our determination, and that is whether one of several joint debtors, against whom judgment has been obtained, can pay off the debt, take an assignment of the judgment, and collect the same from his co-debtors by execution. That this cannot be done, where the debt is a joint one, has been unformly held by the courts of this country. [68 L. R. A. 515 (note).]

And it has been expressly held by the Supreme Court in this State that in such a case, the execution should be quashed upon motion of a co-debtor. [Hull v. Sherwood, 59 Mo. 172.]

It follows that the motion to quash in this case should have been sustained. If there are equities between the judgment debtors to be adjusted, this should be done in an appropriate proceeding in equity, or if the party who paid the judgment was surety only, he might proceed, under the statute, by motion for judgment against the principal or a co-surety, but he cannot collect what may be due him in the manner attempted in this case. The judgment will be reversed.

All concur.

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Bluebook (online)

125 S.W. 212, 141 Mo. App. 366, 1910 Mo. App. LEXIS 92, Counsel Stack Legal Research, https://law.counselstack.com/opinion/johnson-v-sherrodd-moctapp-1910.

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