Carner v. Rogers , 184 Mo. App. 184 ( 1914 )

REYNOLDS, P. J.

It appears that in a case wherein W. M. Carner et al. were plaintiffs, and S. J. Rogers et al. were defendants (and so the parties are designated in the cause, in the judgment and in the execution), an alias execution was issued wherein it is recited that certain officers of court and a printer or publisher of a paper named had recovered against "W. M. Carner, Lydia Sisk, Millie Carner and Belle Carner, plaintiffs, and Everett Reeves and J. R. Brewer, ‘£ securities” on their cost bond, the sum of $58.11 for their debt, interest and costs. The execution directed to the sheriff of the county of Pemiscot commanded him that of the g.oods and chattels of the plaintiffs named, and Everett Reeves and J. R. Brewer,£ £ securities on their cost bond,” he cause to be made the aforesaid debt, interest and costs, etc. An itemized fee bill is attached. After the issue of the alias execution it appears that J. B. Brewer, named as a party in that execution as surety on the cost bond, moved the court to quash that execution on the ground that it is not supported by any judgment. The motion was heard by the court, the alias execution, the judgment in the case of W. M. Carner et al. v. S. J. Bogers et al., being introduced, it being conceded that that was the only judgment in the case, and certain unimportant oral evidence as. to Brewer having directed the issue of the execution being also introduced. At the conclusion of the hearing the court overruled the motion to quash. Excepting to the action of the court and filing a motion for a new trial and in arrest, one of the parties named in the execution, J. B. Brewer, has duly perfected his appeal to this court.

The only judgment introduced in evidence which it is claimed supports this execution is as follows:

“W. M. Carner et al., Plaintiffs, v. S. J. Bogers et al., Defendants.

Come now the plaintiffs by attorney and voluntarily dismiss their cause of action. Thereupon it is ordered and adjudged by the court that the defendants be discharged from further answering herein and go hence without day. It is further ordered by the court that the defendants recover of the plaintiffs the costs in this suit and hereof have execution. ’ ’

This is a judgment in favor of defendants and against plaintiffs in the cause. Under it it would be entirely proper to issue a fee bill or an execution against the plaintiffs and in favor of the officers and printer for costs in the case, costs having been adjudged against the plaintiffs. But neither Brewer nor Beeves are included in or concluded by that judgment on the cost bond, if they were parties to that bond as sureties. It is elementary law that an execution is only to he supported by a valid judgment.

It is said by our Supreme Court in Rankin v. Porter Real Estate Co., 199 Mo. 345, 97 S. W. 877, not only that executions must be founded upon but that they must “properly describe the judgment,” otherwise they are without force. Says Judg’e G-raves in that case: “You cannot procure a lien for one thing by your judgment and by execution enforce a lien for another and different thing.” If it was intended in this case to obtain a judgment on the cost bond, as against the sureties, that could easily have been done by entering the judgment of dismissal and adjudging costs against plaintiffs and their sureties, naming the sureties as such. This was not done. The judgment does not purport to be a judgment against the sureties, either as sureties on the cost bond or in any other capacity. It is still open to defendants, or the officers, to bring action on the cost bond — if right of action is not barred by limitation. [Calhoun v. Gray, 150 Mo. App. 591, 131 S. W. 478.]

As the execution, accurately the alias execution, in this case, is not shown to be supported by any judgment as against the sureties, it should have been quashed. It was error in the circuit court to refuse to do that. The judgment of the circuit court is reversed.

Nortoni and Allen, 3Jconcur.