Prueitt v. Cheltenham Quarry Co.

Peers, J., delivered the opinion of the court. Plaintiff brought suit against the defendant and six others in the circuit court of the city of St. Louis. On the trial, judgment was rendered for the plaintiff against three of the defendants, to-wit, The Cheltenham Quarry Company, Josiah W. Kennedy and Albert Nega. Prom this judgment Kennedy and Nega appealed to this court, giving a supersedeas bond. This defendant did not appeal from the judgment, and execution was issued against it pending the appeal of its co-defendants. Defendant tiled motion to recall and quash the execution, which being overruled by the court, the case comes here by appeal. This record presents but one question, to-wit: Did the trial court err in overruling the motion made by [386] appellant to quash the execution ? The same question has been passed upon in the case of State to use v. Finn, 19 Mo. App. 557, in an opinion by Rombauer, J. The language of the court is : “A judgment against several parties is, undoubtedly, an entirety for certain purposes ; when directly assailed and vacated for causes affecting its validity as to all, it vacates the entire judgment. This has frequently been decided. But it has been decided with equal uniformity, that a judgment though absolutely void as to some of the defendants, may be enforced against others. Lenox v. Clarke, 52 Mo. 115; Wernecke v. Wood, 58 Mo. 352; Holton v. Towner, 81 Mo. 360. This result would be impossible if it was an entirety for all purposes.” In an appeal from the circuit court the judgment itself is not superseded, even when bond is given, its enforcement is temporarily stayed, and that is all. The judgment in this case not being appealed from by the defendant, the same stands as valid and binding, and we see no good reason why an execution should not issue thereon. The judgment of the circuit court is affirmed. All concur.