Weber v. Cummings

Ellison, J. This action is replevin for one norse. Defendant had judgment below. Defendant, claims possession of the horse as constable.by virtue of an execution against plaintiff from a justice of the peace. One Forrester sued plaintiff from a justice of the peace; plaintiff, before return day, appeared before such justice and applied for a change of venue. The justice’s docket is as follows: “ May 12, 1887. “And now comes defendant by his attorneys, Hale & Sons, and files sworn affidavit that the people of this neighborhood are so prejudiced toward him that he could not get justice done him, and asks the court to grant him a change of venue. The change is granted in presence of both parties and the cause of action is removed to the township of Egypt, in Carroll county, state of Missouri,before J. Farrington, justice of said township.” Plaintiff appeared before the justice to whom the cause was sent for the purpose only of filing a motion to dismiss for the alleged reason that the justice granting the change had no authority to do so until return day of the summons. This motion was overruled, and plaintiff herein making no further appearance, judgment was rendered against him. On this judgment execution was issued and levied upon sufficient corn of plaintiff’s to satisfy the execution. Á sale of the corn under the execution was set aside and the corn restored to plaintiff, as is shown by the constable’s return and his oral testimony, and nothing is shown to contradict this. Another execution was issued (a duplicate of the first)' and, under this, the property here replevined was taken. ■ [522] We can see no objection to the justice granting the change of Venue asked by defendant in that case (plaintiff here). It seems to have been regularly asked for and properly granted. We are not aware of any reason why a change of venue cannot be granted before return day of the summons. R. S. 1879, sec. 2952. Plaintiff contends that the levy upon the corn was a satisfaction of the execution. It is true, that a valid levy on sufficient personal property will operate as. a satisfaction of the execution, nothing further appearing. City of Warrensburg v. Simpson, 22 Mo. App. 695. But, if the property levied upon is given up and restored to the owner, such fact will take the case from under this rule. “The restoration of the property to the defendant at his request, or by some act for which he is responsible, prevents the levy from operating as a 'satisfaction, so far, at least, as his rights are concerned.” Freeman on Judgment, sec. 475; Herman on Ex., sec. 176. In this case, the levy had been proceeded with so far as the sale of the corn, but this sale was set aside for want of proper notice, and defendant in the execution (plaintiff here) kept the property. This, under the rule stated, prevented a satisfaction of the judgment or execution. It is, however, insisted that, notwithstanding the sale was set aside, this did not destroy the validity of the levy and that the constable should have proceeded to re-advertise and sell the corn. Of this, we think, plaintiff cannot complain, as he made himself a party to the release of the levy of the corn by accepting of its restoration to him after the sale was set aside. Plaintiff’s affidavit stated, as required by section 3844, Revised Statutes, 1879, that the property “has not been seized under any process, execution or attachment against the property of the plaintiff,” while the proof is that it was seized under an execution against [523] Mm. To avoid this, plaintiff argues that the statute means a valid execution, and that he may, resort to replevin instead of trespass in such case. In the disposition we have made of the case, it is not necessary to consider this question. Our opinion is that, under the record as presented here, the circuit court could not properly have rendered any other judgment than the one entered, and it is, therefore, affirmed. All concur.