Rogers v. Springfield Fire & Marine Insurance

CAMPBELL, J., pro tem.

Plaintiff filed an action to recover the sum of $5,000 from defendant, such being the amount claimed to be owing on two policies of fire insurance. Defendant appeared and filed an answer. On June 5, 1922, the cause came on for trial, at which time plaintiff and defendant entered into a stipulation as follows: “It is hereby stipulated that the above entitled action be and the same is compromised as follows: that plaintiff shall have judgment for the sum of $2,200.00, lawful money of the United States without costs; that execution on the whole of said judgment shall be stayed until such time as the correct amount of moneys now under attachment by garnishments and a certain assignment to T. M. Crum served on the defendant is ascertained, and when said sums are ascertained, and the liability of the defendant under said garnishments and said assignment is definitely ascertained, then the said defendant will pay over to plaintiff to be applied on said judgment all moneys now due upon said judgment over and above the amount of defendant’s liability under said garnishments and said assignment, and the execution shall be further stayed on the remainder of said judgment, as to such amount of defendant’s liability under said garnishments and said assignment until the plaintiff shall procure a release of said defendant from all liability under said garnishments and assignment, and then and in that event the said defendant will pay over to the plaintiff the remainder due upon said judgment and said judgment shall be fully satisfied, and as each attachment is settled by plaintiff, defendant will pay over to plaintiff the amount of such attachment, if the same is paid directly by plaintiff. ’ ’

The court, pursuant to the stipulation, entered its judgment and likewise entered its order staying execution. On June 16, 1922, plaintiff gave notice of intention to move the court for an order directing the issuance of an execution. The motion came on regularly for hearing on July 16, 1922, and was by the court denied without prejudice. Three subsequent and similar notices and motions were made, which were likewise denied.

[540]

The assignment and garnishments referred to in the stipulation had been served on the defendant prior to the making of the stipulation upon which judgment was entered. Thereafter plaintiff engaged in a test case to determine the validity of the garnishments, and their validity was sustained. On May 4, 1926, plaintiff gave notice of intention to move for an order directing the issuance of an execution, and on June 18, 1926, the court made an order that an execution issue against the property of defendant in favor of W. M. Grady, the judgment creditor, for the sum of $1,-217.13, the balance of principal and interest due—the court having found that the judgment as entered for $2,200 was subject to the liens of three attachments or executions aggregating $1,579.30.