Opinion
No. 28570.
March 17, 1953.
APPEAL FROM THE CIRCUIT COURT, CAPE GIRARDEAU COUNTY.
J. Grant Frye, Cape Girardeau, for appellant.
R. P. Smith, Cape Girardeau, for respondents.
This is a suit on a judgment. Real estate, which the judgment debtors were thought to own, had been sold under an execution upon the judgment and it had been bought by the plaintiff in whose favor the judgment ran. The execution had been returned showing the sale and the satisfaction of the judgment by reason of it. It was later discovered that the real estate sold did not belong to the judgment debtors. Upon learning this, the plaintiff brought this suit on the judgment. The trial court found for the defendants and against the plaintiff. Plaintiff prosecutes this appeal.
It was agreed that most of the facts stated in the petition were true and the petition is as follows:
"1. Plaintiff is a corporation organized under the laws of the State of Missouri and is engaged in the finance business.
"2. On July 26, 1949, defendants executed to plaintiff their promissory note in the principal sum of $222.00, payable in monthly installments of $14.80, with an acceleration clause.
"3. Said not provided for interest from maturity at eight per cent (8%) and for a reasonable attorney's fee if the note were not paid at maturity and were placed in the hands of an attorney for collection.
"4. Defendants defaulted in the payment of said note, and the same has been placed in the hands of J. Grant Frye, attorney for collection.
"5. After all credits on said note, there is due at this time the sum of $276.84, principal, interest, and attorney's fee calculated at ten per cent (10%).
"6. On February 9, 1950, on proceedings duly had in the Magistrate Court of Cape Girardeau County, Missouri, plaintiff obtained a judgment on said note in the sum of $248.75, the amount then due thereon, together with $10.00, the accrued costs.
"7. The judgment was duly transcripted to the Circuit Court of Cape Girardeau County, Missouri, and on February 13, 1950, an execution was issued thereon for such judgment and costs and directed and placed in the hands of the sheriff of Cape Girardeau County, Missouri, for service, and such execution was returned nulla bona.
"8. On April 25, 1950, another execution was issued on such judgment returnable to the September Term 1950, of said Circuit Court and under which execution the sheriff of Cape Girardeau County, Missouri, levied upon Lot 9, Block 14, of Giboney Houck Subdivision to the City of Cape Girardeau, Missouri, and on the south half of Lot 18 in Block 7 and the north 50 feet of Lot 17 in Block 7 of Giboney Houck Second Subdivision of the City of Cape Girardeau, Missouri, and on proceedings duly had under such execution said real estate was sold by said sheriff on July 11, 1950, and at such execution sale this plaintiff was the highest bidder for the sum of $286.21, such being the exact amount of the judgment and all costs then accrued.
"9. Prior to such execution sale, defendants represented to plaintiff through its agents and attorneys that they owned such real estate so sold for as in truth and fact they had no interest whatsoever therein and on account of the return of the sheriff on such execution, showing the judgment fully satisfied, the plaintiff has been unable to procure further execution against the defendants, although no part of such has even been paid.
"10. The defendants are thus indebted to plaintiff in such sum of $286.21, together with interest from July 11, 1950, at six per cent (6%) amounting to $26.21, calculated to January 1, 1952.
"Wherefore, plaintiff prays judgment against defendants for the total amount of $312.42."
The attorney for the defendants stated to the trial court that there was only one allegation in the petition in dispute. That was the ninth allegation wherein it was alleged that the defendants represented to the plaintiff that they owned the land sold under execution.
On this point the attorney for the plaintiff testified that after the judgment had been obtained the defendants came to his office and told him that they owned certain real estate. The real estate was advertised for sale under execution in the manner prescribed by law. After the advertisement appeared, plaintiff's attorney was informed by a third party that a certain part of the land advertised did not belong to the defendants. Plaintiff's attorney again talked with the defendants, who told him that they thought they owned the certain part of the land in question and that they did own the rest of the land advertised.
The sale was had as to the land the defendants last said that they owned, and it was bought at the sale on behalf of the Industrial Loan Company, in whose favor the judgment stood, by its attorney. He prepared the sheriff's return, which recites:
"The sale was held on the 11th day of July 1950 and said land was sold to J. Grant Frye, as highest bidder for $286.21. I disbursed same as follows: J. Grant Frye, Attorney for plaintiff $254.95, representing $248.75 judgment and $6.20 interest from date of Judgment; J. Grant Frye, Attorney for plaintiff $9.00 Magistrate and Circuit Court costs advanced; Alvin F. Klaus, $2.50 for previous Sheriff's fees; Southeast Missourian $7.90 for publication fees, and Alvin F. Klaus as sheriff's fees for execution, levy, mileage, and commission $11.86. I was directed by plaintiff's attorney not to sell the other lands described in the levy. I am returning this execution as fully satisfied."
As stated, plaintiff's attorney later learned that the defendants had not title to the property, he had directed the sheriff to sell, and brought this suit on the original judgment. No evidence was offered on behalf of the defendants.
It is contended that the court erred in finding for the defendants in that this is an authorized action at law, and that under the undisputed facts plaintiff was entitled to a judgment. As authority for this, we are cited to Boynton v. Boynton, 186 Mo.App. 713, 172 S.W. 1175. This case was decided by the Kansas City Court of Appeals in 1914 and it involved a state of facts wherein the plaintiff had been induced through fraud to acknowledge satisfaction of a judgment. The action was in three counts. Two of these were in equity to set aside the satisfaction of judgment, one was on the ground of fraud and the other on the ground that there was no consideration for the release of the judgment. The third count, at law, was for a balance due on the judgment. The court held that the first two counts would not lie because the plaintiff's remedy was at law. This conclusion was reached because the court considered the count at law in the nature of a common-law action in audita querela and held that such action would lie. It appears that the court had an erroneous conception of audita querela, which was a writ to afford relief to a judgment debtor because of some defense or discharge arising subsequent to the judgment. 7 C.J.S., Audita Querela, § 1, page 1278; Kelley v. Kelley, Mo.App., 290 S.W. 624.
In the case of Kelley v. Kelley, supra [290 S.W. 628], the Kansas City Court of Appeals refused to follow the Boynton case, and stated:
"In the Boynton Case the court assumed that the writ of audita querela at common law was available to one in whose favor the judgment had been rendered for the purpose of aiding in its enforcement by setting aside its release on satisfaction. No such remedy could be procured by a writ of audita querela at common law."
In Bailey v. Buchanan, 126 Mo.App. 190, 102 S.W. 36, 40, under circumstances strikingly similar to those in the case at bar, we held that a suit in equity to set aside a record of satisfaction was properly brought, stating:
"* * * no good reason can be given for holding that the judgment was pro tanto satisfied by these sales, and we think the case comes clearly within the equitable doctrine * * *, and that the plaintiff is entitled to the relief sought * * *."
It would appear, however, that no suit need be brought to reach the results desired. Obviously the defendants have in no way discharged the judgment debt and the plaintiff took nothing at the sheriff's sale. All that stands in the way of executing upon the present judgment is the erroneous recitation that it has been satisfied. The Missouri Supreme Court in Cohen v. Camp, 46 Mo. 179, loc. cit. 180, stated:
"The acknowledgment of satisfaction is merely evidence of payment, and, if made bona fide and correctly, forever discharges and releases the judgment or decree. But as between the parties, if made unauthorizedly or by mistake, it may be canceled or set aside on motion."
All that the plaintiff needed to do was to file with the court a motion to set aside the satisfaction of the judgment. Cohen v. Camp, supra; Kelley v. Kelley, Mo.App., 290 S.W. 624; Hayes v. Sheffield Ice Co., 282 Mo. 446, 221 S.W. 705; 51 A.L.R. 248; 9 A.L.R.2d 559.
The suit for a new judgment was therefore not the proper remedy, for the situation in which the plaintiff found itself, since it had a judgment which was not in fact satisfied, and which, upon proper motion, could be placed in full effect. The court could have properly dismissed the plaintiff's petition for it stated no cause of action, but insofar as the judgment recites that it "finds the issues herein in favor of the defendants and against the plaintiff" it is erroneous. There were no issues properly before the court for determination.
For the reason stated the judgment should be reversed and the cause remanded with directions that an order dismissing plaintiff's petition be entered.
The foregoing opinion of WOLFE, C., is adopted as the opinion of the court.
The judgment of the circuit court is accordingly reversed and the cause remanded with directions in accordance with the recommendation of the Commissioner.
BENNICK, P. J., and ANDERSON and IVAN LEE HOLT, Jr., JJ., concur.