Fink v. Alderson

Philips, P. J. I. Section 2875, Revised Statutes, in such actions, provides that if the finding be for the plaintiff, and sustaining the lien, the judgment shall be that he recover the amount of the indebtedness found to be due, with costs,' etc., “with the addition that if sufficient property of the debtor cannot be found to satisfy such judgment and costs, the same, or the residue thereof, shall be levied out of the property charged with the lien. But if the finding be for the plaintiff and the lien be not sustained, the judgment shall be in the ordinary form, and may be enforced against the property of the debtor as ordinary judgments of justices of the peace.” Section 2878, Revised Statutes, provides that: “If the judgment be for the enforcement of the lien against the property, as hereinbefore provided, it shall be the duty of the justice, upon demand of plaintiff and payment of fees therefor, to make out and forthwith file with the clerk of the circuit court of his county, a certified transcript of such judgment, and such clerk shall record the same, etc., and the said judgment shall be enforced and executions issued thereon in all respects as on judgments of a like nature rendered in the circuit court; but no execution shall be issued by the justice to enforce the lien of any such judgment against the property therein described.” The manifest construction of these provisions of the statute is, as we think, that on the judgment enforcing the lien the plaintiff should file the transcript with the circuit clerk, and process should go from the clerk’s office and not from the justice’s court, for the enforcement of the judgment. The execution, of course, must follow the judgment. Its command is, first to make the debt out of the property of the debtor; the contractor, and if no sufficient property of the debtor can be found, then to sell the property against which the lien is ordered to be enforced. Before the sheriff can proceed to execute this judgment against the special property he must exhaust the [368] remedy against the property of the real debtor. If no property of the debtor can be found, this fact should be made to appear by the officer’s return. This the record shows the sheriff did not do. His return and the proof show that he levied only on the property of defendant described in the judgment lien. His return fails to show that he made any effort whatever to find property of the debtor. Under such a return he was not authorized to sell the property of defendant, Alderson. II. The defendant improperly designated his motion ■ as one to quash the execution. The execution was in proper form. It followed the judgment. The irregularity ■ was the act of the sheriff in prematurely proceeding against the special property of defendant. The motion, therefore, should have been designated as one to quash the levy and vacate the return. Freeman on Ex., sect. 361. But the facts recited in the notice and the motion clearly enough indicated the true office of the motion and the irregularity in the proceedings of the officer. And on the facts appearing at the hearing the court should have administered relief secundum, allegata et probata. Rankin v. Charless, 19 Mo. 490; Miltenberger v. Morrison et al., 39 Mo. 72. Circuit courts have a supervisory control over their process to see that it is not misused. The judgment is reversed and the cause remanded with directions to the circuit court to quash the levy. All concur.