Hubbard v. Moss

Henry, J. We cannot conceive why, even if the court had the right to make it, the nunc pro tunc entry was made. The two judgments were substantially the same. One, the first, was for $100, and that plaintiff have execution against the property of defendant; the second, was for the same amount, and that plaintiff have execution against the property attached in the suit, as well as against the other property of defendant. Hnder the execution awarded by the original judgment, the sheriff could have taken, as well the attached property as other property of defendant, and, under the second, he could do more. The lien of the attachment was not lost by the judgment as first entered. Section 36 of the attachment act, Wag. [650] Stat., page 188, provides “ when defendant has been served with the writ, or appears to the action, the judgment and execution shall hold, not only the property attached, but the other property of the defendant..” Section 40, page 189, provides that “when defendant is summoned to appear, or shall voluntarily appear, the like proceedings shall be had between him and the plaintiffs, as in ordinary actions commenced by summons, and a general judgment may be rendered for or against the defendant.” By section 58, page 193, the execution is required to be a common fieri facias, where the judgment is general; by section 27 of the act in relation to Landlord and Tenant “the proceedings on all attachments issued under this chapter shall be the same as provided by law in cases of suits by attachment.” i. landlord and Iftaoh'montfgenpro tuno; entry; fort! bond. forthcoming The first judgment entered in this cause was a proper judgment and there is no entry of record, nor is there anything, in the nature of the proceeding to indicafo that it was not the very judgment the court rendered. The nunc pro tunc entry was, therefore, improperly made, and the defendant in the attachment suit not being-in court, the nunc pro tunc judgment was a nullity. That judgment being- void, it follows that the execution issued on.it was a nullity. By séc. 54, page 192, Wag. Stat. it is provided that “whenever it shall appear from the return of the officer upon an execution issued in an attachment suit that none of the property attached has been found, or only a part thereof, and that said execution is not fully satisfied, the court or justice shall dix-ect the officer to assign to th'e plaintiff, his executor or administrator, the bond taken by him for the fox-thcoming of the propex-ty attached, axxd such court or justice xnay, upon motion, rexxder judgxnexxt ixi favor of the plaixxtiff, his executor or admixiistrator, against the obligors in the bond for the value of such property, &c.” It will be observed that the court [651] cannot under this section render a judgment against the obligors in the forthcoming bond until an execution shall have been issued in the attachment suit and returned. Although the nunc pro tunc j udgment and the execution thereon were nullities, yet, it appears that, before the entry of that judgment an execution had been issued on the original judgment and duly returned by the sheriff, not satisfied, in whole or in part, and that was sufficient to warrant the proceedings on the forthcoming bond against those who executed it. The original j udgment was not vacated by the nunc pro tunc entry. The latter judgment being unauthorized and a nullity, the other remained iu full force. 2 attachment • t>ondboming Nor does the action of the court, quashing the attachment writ, relieve the obligors in the forthcoming bond. the same term, and within four days after the order was made, quashing the writ, that order was set aside, and defendant cannot, in this proceeding, invoke equity to save him from the consequences of the haste and precipitancy with which he returned to the defendant in the attachment suit, the money he held as an indemnity. 3. landlord and Sment Tt to°iien!y subject The only remaining question is one of more difficulty, because the decisions of this court on the subject apparently conflict with each other. The act in relation to Landlords and Tenants, sec. 18, page 880, Wagner’s Stat. gives a landlord a lien upon the crop grown on the demised premises, in any year for the rent that shall accrue for such year, and provides that such lien shall continue for eight months after the rent becomes due, and no longer. The 26th section, page 881, provides for an attachment in favor of the person entitled to it against any one liable to pay rent, whether due or not, if payable within a year thereafter, who intends to remove, is removing, or within thirty days has removed his property from the leased premises, and provides that “ the person to whom the rent is owing may, [652] before a justice of tbe peace, or the clerk of a court of record having jurisdiction of actions by attachment in ordinary cases, of the county in which the premises lie, make affidavit of one or more of the facts aforesaid, and that he believes, unless an attachment be issued, he will lose his rent. "Whereupon such officer shall issue an attachment against the personal property of the person liable for the same.” In Saunders v. Ohlhausen, 51 Mo. 168, the court held that the foregoing and the section following, provide for the manner of enforcing the lien given by the 18th section, while in the case of Price v. Roetzell, Admx., 56 Mo. 500, the court held that the attachment authorized by the 26th section is not to enforce a lien against the crops raised during the year, but to secure the rent from property on the place on which there is no lien. We do not think that the attachment was a remedy prov'ded for enforcing the lieu, for the lien may be in full force and the landlord have no right to an attachment at all; but we can see nothing in the act to hinder an attachment, properly sued out under the 26th section, from being levied upon property grown upon the leased premises, whether subject to the lien given by the 18th section or not. The law declares that the attachment shall issue against the personal property of the person liable to pay the rent, and we can see no good reason why the property grown on the premises should be excepted. It may be, and frequently is, all the property owned by the tenant, which could be taken for rent. There is no principle upon which the words of the statute “personal property of the person liable,” can be restricted to property not subject to the lien. The case of Price v. Poetzell, supra, was a proceeding to enforce the lien, and the court held that the attachment in aid was absolutely unnecessary, “ because the court could have enjoined any sale of the crops by the administratrix, and had the right to order their sale as perishable property by the sheriff, and their proceeds held subject to the result of the suit.” We do not understand the court as holding, [653] in that case, that an attachment issued under the 26th section could not be levied upon the property grown on the leased premises, as well as other property of the tenant. If there were any doubt that the language of the 26th section, “ personal property of the person liable for the same,” embraced as well the crops grown on the land, as other personal property, the 31st section removes it by providing “that property exempt from execution shall be also exempt from attachment for rent, except the crop grown on the demised premises, on which the rent claimed is due.” There were many irregularities in the proceedings in the attachment suit, but no error to justify a reversal of this judgment, and it is accordingly, with the concurrence of the other judges, affirmed. Affirmed.