Heuring v. Williams

Hough, J. On the 29th day of December, 1863, the. plaintiff obtained judgment against the defendant in the Cape Girardeau Court of Common Pleas, on which judgment execution was issued on the' 21st day of January, 1864, and was returned nulla bona. On the 13th day of August, 1868, the defendant hied his petition in bankruptcy in the United States District Court for the Eastern District of Missouri, and on the 3d day of May, 1869, he was by the order of said court “ forever discharged from all debts and claims which by said act are made provable against his estate, and which existed on the 13th day of August, A. D., 1868.” On the 24th day of March, 1873, an alias execution was issued on the judgment rendered by the Common Pleas Court, returnable to the May term of said court, and on the 26th day of May', 1873, the defendant hied, in open court, a motion for a perpetual stay of execution on said judgment, on the ground that he was discharged therefrom by the decree in bankruptcy. The motion was overruled, and the defendant has appealed. The only question presented for determination is, whether the defendant should have proceeded by petition, verified by oath or affirmation, as provided in the 67th section of the act relating to executions, or whether the present proceeding by motion, hied in open court, was allowable. It is evident from the provisions of the 68th and 69th sections, regulating the proceedings on the petition provided for in the 67th section, that the purpose of the statute was, as was stated in Parker v. H. & St. Jo R. R., 44 [448] Mo., 419, to give the defendant in the execution the privilege of applying to the judge at chambers, or in vacation for an order staying the execution until he can be heard in court as to whether it should be set aside or quashed. Where, however, the application is not made in vacation or during a recess of the court, but in open court, resort may be had to the customary form of proceeding by motion to quash execution at the return term in open court; and neither oath nor affirmation in support of the motion, is in such case necessary. The. judgment will be reversed and the cause remanded. All concur. Reversed. '