Union Nat. Bank of Wichita, Kan. v. Lamb

• Decision Date: 12 July 1948
• Docket Number: 40684
• Citation: 213 S.W.2d 416,358 Mo. 65
• Parties: The Union National Bank of Wichita, Kansas, a Corporation, Appellant, v. Carl C. Lamb, Respondent
• Court: Missouri Supreme Court

213 S.W.2d 416

358 Mo. 65

The Union National Bank of Wichita, Kansas, a Corporation, Appellant, v. Carl C. Lamb, Respondent

No. 40684

Supreme Court of Missouri

July 12, 1948

Rehearing Denied September 13, 1948.

Appeal from Jackson Circuit Court; Hon. James W. Broaddus Judge.

Affirmed.

Maurice J. O'Sullivan and John G. Killiger, Jr., for appellant.

(1) The circuit court erred in construing Section 1038, R.S. 1939. Northwestern Brewers Supply Co. v. Vorhees, 203 S.W.2d 422; Smith v. Kander, 58 Mo.App. 61; Sec 1038 R.S. 1939; Davis v. Davis, 305 U.S. 32, 83 L.Ed. 26, 59 S.Ct. 3, 118 A.L.R. 1518; Mayes v. Mayes, 116 S.W.2d 1, 342 Mo. 401; Garner v. Hayes, 3 Mo. 436; State v. Culp, 39 Mo. 530; Walsh v. Bosse, 16 Mo.App. 231; Secs. 1274, 1437, 1275, 1276, 1277, 1278 R.S. 1939; Sec. 1864 R.S. 1939 corresponding to 28 U.S.C.A. 687; Union Fire Ins. Co. v. Hansen, 180 S.W.2d 265, 237 Mo.App. 1110; Kratz v. Preston, 52 Mo.App. 251; Collins County Bank v. Hughes, 155 F. 389; Bank of Edwardsville v. Raffaele, 381 Ill. 486, 45 N.E.2d 651; Waldstein v. Williams, 101 Ark. 404, 142 S.W.2d 834, 37 L.R.A. (N.S.) 1162; Flexner v. Farson, 268 Ill. 435, 109 N.E. 327; U.S. Brewing Co. v. Epp., 247 Ill.App. 315; Comstock v. Holbrook, 16 Gray 111; Adams v. Rowe, 11 Me. 89, 25 Am. Dec. 266; White v. Evans, 157 F.2d 857; Crawford v. Foster, 84 F. 939, 28 C.C.A. 576; Mo. & Ark. L. & M. Co. v. Greenwood, 249 U.S. 120, 63 L.Ed. 538; Chase Securities Co. v. Donaldson, 325 U.S. 304, 89 L.Ed. 1628; Sec. 1017, R.S. 1939, affidavit to prevent mortgage to expire. (2) The circuit court erred in failing to follow the interpretations of the Federal Constitution as declared by the Supreme Court of the United States. Walsh v. Sovereign Camp, W.O.W., 152 S.W.2d 127; State ex rel. Bluford v. Canada, 153 S.W.2d 12, 348 Mo. 298; Trustees of William Jewell College v. Beavers, 171 S.W.2d 604, 351 Mo. 87. (3) The judgment of the circuit court erred in denying full faith and credit to the duly authenticated Colorado judgment and contravened Article IV, Section 1, of the Constitution of the United States, 28 U.S.C.A. 687 and Section 1864, R.S. 1939, and controlling decisions of the Supreme Court of the United States. Morris v. Jones, 329 U.S. 545, 67 S.Ct. 451, 168 A.L.R. 656; Milwaukee County v. White, 296 U.S. 268, 80 L.Ed. 228; Titus v. Wallick, 306 U.S. 282, 83 L.Ed. 653; Adams v. Saenger, 303 U.S. 59, 82 L.Ed. 649, 58 S.Ct. 454; Crimm v. Crimm, 63 S.W. 489, 162 Mo. 544, 52 L.R.A. 502; Cook's Estate v. Brown, 140 S.W.2d 42, 346 Mo. 281, 128 A.L.R. 1396; Milliken v. Meyer, 311 U.S. 457, 61 S.Ct. 339, 85 L.Ed. 278, 132 A.L.R. 1357; International Shoe Co. v. Washington, 326 U.S. 310, 90 L.Ed. 95; Michigan Trust Co. v. Ferry, 228 U.S. 346, 57 L.Ed. 867; Lessee of Walden v. Craig's Heirs, 14 Pet. 147, 10 L.Ed. 393; United States v. Ritchie, 17 How. 525, 15 L.Ed. 236; McKnight v. Craig's Admr., 6 Cranch. 183, 3 L.Ed. 193; Plimpton v. Mattakeunt, 6 F.Supp. 72; Barber v. Barber, 323 U.S. 77, 65 S.Ct. 137, 89 L.Ed. 82; Cukor v. Cukor, 168 A.L.R. 227, 49 A.2d 206; Durlacher v. Durlacher, 123 F.2d 70; Durlacher v. Durlacher, 17 N.Y.S. (2d) 643, 173 Misc. 329; Owens v. McCloskey, Exr. of Henry, 161 U.S. 642, 40 L.Ed. 637; Brown v. Wygant, 163 U.S. 618, 41 L.Ed. 284.

Cornelius Roach, Daniel L. Brenner and Wilfred Wimmell for respondent.

(1) The Colorado judgment was and is barred by the terms of Sec. 1038, Mo. R.S.A., because it was not revived within ten years from the date of the original rendition. Sec. 1038, R.S. 1939; Hedges v. McKittrick, 153 S.W.2d 790; Mayes v. Mayes, 116 S.W.2d 1; Dreyer v. Dickman, 131 Mo.App. 660; Northwestern Brewers Supply Co. v. Vorhees, 203 S.W.2d 422. (2) The Colorado judgment was and is barred by Sec. 1038, Mo. R.S.A., because it was not revived within ten years from the date of the original rendition upon personal service. Sec. 1038, R.S. 1939; Dull v. Blackburn, 42 L.Ed. 733; Pennoyer v. Neff, 24 L.Ed. 565; Moss v. Fitch, 212 Mo. 484; Jones v. Anheuser-Busch Brewing Assn., 188 S.W. 82; Payne v. Brooke, 217 S.W. 595; Wheaton Flour Mills Co. v. Welch, 122 Minn. 396, 142 N.W. 714; Holt v. Sother, 264 P. 108; Nahas v. Nahas, 59 Nev. 220, 90 P.2d 233; Kane v. Stallman, 209 Minn. 138, 296 N.W. 1. (3) The judgment below did not deny full faith and credit to the Colorado judgment, and did not contravene Article IV, Section 1, of the Constitution of the United States. Sec. 1038, Mo. R.S. 1939; McElmoyle v. Cohen, 10 L.Ed. 177; Bacon v. Howard, 15 L.Ed. 811; 34 C.J. 1110, Judgments, secs. 1577, 1578; 52 A.L.R. 567; 31 Am. Jur. 346, sec. 848; Berkley v. Tootle, 163 Mo. 584; Northwestern Brewers Supply Co. v. Vorhees, 203 S.W.2d 422; McElmoyle v. Cohen, 38 U.S. 312, 10 L.Ed. 177; Lamb v. Powder River Live Stock Co., 132 F. 434.

Bradley, C. Dalton and Van Osdol, CC., concur.

OPINION

BRADLEY

Action to recover on a Colorado revived judgment. A trial without a jury resulted in a finding and judgment for defendant and plaintiff appealed. The appeal lies to the supreme court because the amount in dispute exceeds the sum of $ 7,500. See Art. V, Sec. 3, Constitution.

December 8, 1927, plaintiff obtained a judgment for $ 3,493.01 against defendant in the district court of Denver, Colorado. No payment was made on this judgment. October 27, 1945, nearly 18 years after original rendition, the Colorado judgment was revived by getting extraterritorial personal service upon defendant in Jackson County, Missouri. December 13, 1945, plaintiff filed the present cause to recover on the revived judgment.

Defendant makes two defenses, first, that plaintiff's cause is barred by Sec. 1038 R.S. 1939, Mo. RSA, Sec. 1038, and second, that the judgment of revival in Colorado was not upon personal service as required by Sec. 1038. This section provides: "Every judgment, order or decree of any court of record of the United States, or of this or any other state, territory or country, shall be presumed to be paid and satisfied after the expiration of ten years from the date of the original rendition thereof, or if the same has been revived upon personal service duly had upon the defendant or defendants therein, then after ten years from and after such revival, or in case a payment has been made on such judgment, order or decree, and duly entered upon the record thereof, after the expiration of ten years from the last payment so made, and after the expiration of ten years from the date of the original rendition or revival upon personal service, or from the date of the last payment, such judgment shall be conclusively presumed to be paid, and no execution, order or process shall issue thereon, nor shall any suit be brought, had or maintained thereon for any purpose whatever" (italics ours).

The Colorado statute of limitation on a judgment is 20 years, and the lien expires in 6 years. 3 Colo. Ann. Stat. 1935, Ch. 93, Sec. 2. This section, among other things, provides that "from and after twenty years from the entry of final judgment in any court of this state, the same shall be considered as satisfied in full, unless revived as provided by law." If the present judgment had not been revived it would have been barred in this state in 10 years from the date of its original rendition, notwithstanding the 20 years limitation of the Colorado statute. Sec. 1038, supra; Northwestern Brewers Supply Co. v. Vorhees, 356 Mo. 699, 203 S.W.2d 422, and cases therein cited. The question is, Does Sec. 1038 bar the revived judgment because it was not revived within 10 years from the date of its original rendition the limitation fixed for revival by Sec. 1271 R.S. 1939, Mo. RSA Sec. 1271. This section is as follows: "The plaintiff or his legal representative may, at any time within ten years, sue out a scire facias to revive a judgment and lien; but after the expiration of ten years from the rendition of the judgment, no scire facias shall issue."

Plaintiff contends that to bar the present revived judgment would be contrary to the full faith and credit provision of the federal Constitution, Art. IV, Sec. 1, which provides: "Full Faith and Credit shall be given in each State to the public Acts, Records and judical Proceedings of every other State. And the Congress may by general Laws prescribe the manner in which such Acts, Records and Proceedings shall be proved, and the Effect thereof." But "it has uniformly been held that each of the states of the Union may pass a law limiting the time within which an action may be brought on a judgment rendered in another state, without thereby depriving the judgment of the full faith and credit to which it is entitled under the Constitution of the United States." 11 Am. Jur. Sec. 192, p. 507; 34 C.J., Sec. 1578, p. 1110; Northwestern Brewers Supply Co. v. Vorhees, supra. It is the general rule that the lex fori governs the limitation of actions within its borders, and that the enforcement of a foreign judgment goes to the remedy and not to its merits or validity under the lex loci. "In short, the lex fori determines the time within which a cause of action shall be enforced." 11 Am. Jur. Secs. 191, 192, pp. 505, 507; Northwestern Brewers Supply Co. v. Vorhees, supra.

Now to the question, Does Sec. 1038 bar the revived judgment because it was not revived within 10 years from the date of rendition of the original judgment? We assume, without deciding, for the purposes of this question, that the extraterritorial personal service was valid for revival under Sec. 1038.

Plaintiff cites many cases from this and other jurisdictions, both federal and state. Among these are Crim v. Crim, 162 Mo. 544, 63 S.W. 489, 54 L.R.A. 502; Morris v Jones, 329 U.S. 545, 67 S.Ct. 451, 91 L.Ed. 488, 168 A.L.R. 656; Milwaukee County v. White Company, 296 U.S. 268, 56 S.Ct....