Welch v. City of St. Louis ( 1882 )

Lewis, P.. J.,

delivered the opinion of the court.

The defendant Eyermann appeals from the circuit court’s refusal to quash an execution, on his motion. On March 15, 1877, a judgment was rendered in favor of Patrick Welch for $1,000 against these defendants, the city of St. Louis, and Gottlieb Eyermann. On August 16, 1877, Welch assigned his judgment, on the margin of the record, to Smith & McCann, his attorneys.. There were sundry proceedings on appeals to this court and the supreme court, which ended in a final affirmance of the j udgment by the supreme court, on February 23,1881. On April 13, 1881, the clerk of the circuit court issued the execution, in usual form, which this motion seeks to quash. The name of Patrick Welch, as plaintiff, was used, without change or addition, throughout the proceedings, except that the execution was indorsed by the clerk to the use of Smith & Mc-Cann, assignees. On May 9,1881, the defendant Eyermann filed his motion to recall and quash the execution, supported by sundry uncontradicted affidavits tending to show that Patrick Welch had died before the date of the supreme court’s judgment of affirmance.

It may be true, as claimed for the respondents, that the judgment of the supreme court, notwithstanding the antecedent death of Welch, must be treated as valid, until vacated by the same tribunal. But this will not cure the infirmity of the execution. Without statutory aid, there, could be no valid execution of a judgment in favor of one not in esse. The statute authorizes execution, under such. circumstances, in the name of tlie legal representatives of the deceased plaintiff, and not otherwise. Rev. Stats., sect. 2742 ; Gaston v. White, 46 Mo. 486. The assignment of the judgment effects no change whatever as to the person in whosename the execution should be issued. If Patrick Welch wis dead at the time, the execution should have been issued in the name of his legal representatives. By no other means can effect be given to both the sections 2742 and 2764.

An assignment of a judgment is not possible, at common law. It would be a perversion of the record, to say that a judgment rendered in favor of A. has become a judgment in favor of B. In equity, however, effect is given to such an assignment, by vesting in the assignee a right to collect the proceeds. Our statute carefully preserves these distinctions. It sanctions no change in the legal or nominal ownership of the judgment, but simply requires the clerk to indorse on the execution, that it is for the use of the assignee named. The case is analogous to that of land held by a trustee to the use of another. If the trustee dies, the beneficiary is no more invested with the legal title than he was before, and can no more convey it. Smith & Mc-Cann are not, and never have been, the legal or titular owners of the judgment. The owner was Patrick Welch until he died, and after him, by statute, his legal representatives. The execution could run in no other name or title, by all the usages of legal continuity in judicial records.. The use, only, has been in Smith & McCann, from the date of the assignment. The judgment must be reversed and the cause remanded.

Judge Bakewell concurs ; Judge Thompson dissents.