Section 2.6 Effect of Modification, Vacation, or Reversal of Judgment

• Library: Creditors' Remedies (2009 Ed. + 2014 Supp)

E. (§2.6) Effect of Modification, Vacation, or Reversal of Judgment

When the judgment or decree on which an execution rests is set aside or vacated by the trial court before the judgment becomes final, the execution falls with it. A motion to quash the execution is the proper remedy. Lohmann v. Lohmann, 246 S.W.2d 368 (Mo. App. E.D. 1952). This same principle would apply when an execution is outstanding at the time the judgment that it was issued on is reversed or set aside by an appellate court.

Sometimes a judgment is reversed or set aside on appeal after the judgment debtor's property has been sold under execution. Upon reversal or vacation of the judgment, the appellant is entitled to restitution from the respondent of all benefits acquired on the erroneous judgment during the pendency of appeal. DeMayo v. Lyons, 228 S.W.2d 691 (Mo. 1950); State ex rel. Horine Farms v. Jones, 830 S.W.2d 894 (Mo. App. S.D. 1992); State ex rel. Mo. Highway & Transp. Comm'n v. Wilson, 864 S.W.2d 341 (Mo. App. W.D. 1993). The restitution that the appellant is entitled to is everything that the respondent received as a result of the erroneous judgment. When title to real or personal property is acquired by a party to the action under execution and the judgment is later reversed, the party's title is at an end, and the property must be restored in specie—not the value, but the things themselves. The party entitled to a writ of possession would also be entitled to an accounting of rents and profits or the rental value of the property plus waste or damage to property or crops during the period the property is held by the adverse party. Hurst Automatic Switch & Signal Co. v. Trust Co. of St. Louis County, 236 S.W. 58 (Mo. 1921). But these damages are not open-ended, and neither speculative damages nor attorney fees may generally be recovered. Lancaster v. Simmons, 621 S.W.2d 935, 941 (Mo. App. W.D. 1981). The Bankruptcy Appellate Panel of the Eighth Circuit, in Blackwell v. Lurie (In re Popkin & Stern), 263 B.R. 885 (B.A.P. 8^th Cir. 2001), reaffirmed the decision in DeMayo, 228 S.W.2d 691, finding that the judgment debtor is entitled only to restitution equal to the amount received by the plaintiff at sale plus interest and taxable costs. The court deducted from the restitution award the $16,825 commission paid to the sheriff, finding that the plaintiff did not benefit from the money paid to the sheriff.

When there is no supersedeas bond staying execution, a sale under the...