Ballard v. Standard Printing Co.

• Decision Date: 12 May 1947
• Docket Number: 40146
• Citation: 202 S.W.2d 780,356 Mo. 552
• Parties: H. A. Ballard v. Standard Printing Company, a Corporation, Appellant, C. F. Kelly, Daniel Buckcord, S. R. Quigley, Docie Merrell, D. M. Disinfection, Sam Trigg, Pete Venable, Frank Penrod, O. D. Randel, Gladys Nobels, E. F. Bradshaw, B. F. Taylor, Geo. Rideout, S.W. Brooks, J. F. Ryan, B. M. Langford, Wm. McCourt, Sol Wall, G. W. Sewell, Girmo Mfg. Co., Dr. Waddle, Louis Dalton, E. T. Ford, J. V. Johnson, T. C. Hopper, James Cassey, Luther Shaw, J. J. Moore, J. P. Johnson, J. J. Ollar, Buxton and Skinner Printing & Stationery Co., a Corporation, Boyer Fire Apparatus Company, a Corporation, Earl Feis, Howard R. Maness, and the County of Ripley, Missouri
• Court: Missouri Supreme Court

202 S.W.2d 780

356 Mo. 552

H. A. Ballard v. Standard Printing Company, a Corporation, Appellant, C. F. Kelly, Daniel Buckcord, S. R. Quigley, Docie Merrell, D. M. Disinfection, Sam Trigg, Pete Venable, Frank Penrod, O. D. Randel, Gladys Nobels, E. F. Bradshaw, B. F. Taylor, Geo. Rideout, S.W. Brooks, J. F. Ryan, B. M. Langford, Wm. McCourt, Sol Wall, G. W. Sewell, Girmo Mfg. Co., Dr. Waddle, Louis Dalton, E. T. Ford, J. V. Johnson, T. C. Hopper, James Cassey, Luther Shaw, J. J. Moore, J. P. Johnson, J. J. Ollar, Buxton and Skinner Printing & Stationery Co., a Corporation, Boyer Fire Apparatus Company, a Corporation, Earl Feis, Howard R. Maness, and the County of Ripley, Missouri

No. 40146

Supreme Court of Missouri

May 12, 1947

Rehearing Denied June 9, 1947.

Appeal from Ripley Circuit Court; Hon. Randolph H. Weber Judge.

Reversed and remanded (with directions).

Jackson F. Adams for appellant.

(1) A county warrant is not barred until five years from the date there is money in the county's treasury to pay said warrant. Section 13835, R.S. 1939. (2) County warrants, being covered by a special statute of limitations, are not barred by operation of any general statute of limitations. Wilson v. Knox County, 132 Mo. 387; State ex rel. Frazier v. Holt County Court, 135 Mo. 533. (3) County warrants must be paid in the regular order of presentation for payment and registration whether judgment is obtained thereon or not. Sec. 13801, R.S. 1939; Sturdivant Bank v. Stoddard County, 332 Mo. 568, 58 S.W.2d 702; Douglas County v. Bank of Ava, 333 Mo 1195, 65 S.W.2d 104. (4) Payment is made by the treasurer on the warrant itself, not on any judgment based on the warrant. State ex rel. Natl. Bank of Rolla v. Johnson, 162 Mo. 621, 63 S.W. 390. (5) The doctrine of merger should not be carried any further than the hands of justice require. 34 C.J., p. 754; Cobbey v. Peterson, 89 Colo. 350; Wyoming Building & Loan Assn. v. Mills Construction Co., 38 Wyo. 515. (6) Many exceptions to the doctrine of merger have been announced for the purpose of promoting equity and the courts will look behind the judgment when the essential rights of the parties are affected by the original contract. 34 C.J., p. 754; In re William H. Deason & Co., 19 F.2d 275; State v. Citizens Bank of Ralston, 115 Neb. 593.

Howard R. Maness for respondent.

(1) All judgments, orders or decrees rendered for more than ten years, and which have not been renewed, and upon which no payment has been made for more than ten years, are not only barred, but are conclusively presumed to have been paid. Sec. 1038, R.S. 1939; Cobb v. Houston, 117 Mo.App. 645. (2) To all intents and purposes, a county warrant is the promissory note of the county. Secs. 13831, 13834, R.S. 1939; International Bank of St. Louis v. Franklin County, 65 Mo. 105; Steffen v. Long, 165 Mo.App. 254; American Employees Inc. Co. v. Manufacturers & Mechanics Bank, 85 S.W.2d 174. (3) The effect of a judgment is to merge therein the cause of action on which the action is brought, from the date of the judgment. 30 Am. Jur., p. 903, sec. 150; McKnight v. Taylor, 1 Mo. 282; Crim v. Crim, 162 Mo. 544; State ex rel. Noe v. Cox, 19 S.W.2d 695.

Bohling, C. Westhues and Barrett, CC., concur.

OPINION

BOHLING

H. A. Ballard, as treasurer of the county of Ripley, State of Missouri, instituted this action for a declaratory judgment in respect to his official obligation to pay certain warrants issued by said county and duly presented to, protested by, and certified as to the insufficiency of funds in the treasury for their payment by the then treasurer. (Secs. 13801 and 13833. ^[1]) The petition named Standard Printing Company, a corporation, the county of Ripley, and more than thirty other individuals and corporations as defendants. Some of the warrants were issued in 1925, others in 1926, 1927, 1928, and 1929. There had become available a short time prior to suit and well within the past five years $ 4,951.60 to apply on these defaulted warrants. The Standard Printing Company, holder of a number of the warrants, some having been assigned to it, had secured a judgment against the County on said warrants in the principal sum of $ 5,604.92 on November 22, 1929. They, or a material portion thereof, are the first warrants for payment. There had been no revival of or payment on the judgment of 1929. The court found that the judgment of the Standard Printing Company was presumed to have been paid and adjudged that plaintiff pay the warrants held by the other defendants in the order of their registration. The Standard Printing Company appealed. A sufficient reason for appellate jurisdiction here is that the County of Ripley is a party. Mo. Const. 1945, Art. V, Sec. 3.

In the above circumstances appellant contends Sec. 13835 applies and that appellant's warrants are payable if presented at any time within five years after the funds became available for their payment, appellant having said warrants on hand for presentation and payment.

Respondent contends that the warrants merged in the judgment of 1929 and, hence, the provisions of Sec. 13835 do not apply; and also that under Sec. 1038 the judgment stands paid and the claim on the warrants stands extinguished. The court, as stated, adopted the latter view.

Section 13835 provides that if warrants drawn on county treasurers, and presented for payment and protested for want of funds "shall not be again presented for payment within five years after funds shall have been set apart for the payment thereof, such warrant shall be barred and shall not be paid. . . ."

Section 1038 provides, in part: "Every judgment . . . of any court of record . . . of this . . . state . . . shall be presumed to be paid and satisfied after the expiration of ten years from the date of the original rendition thereof . . ., 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."

Generally a cause of action merges in the judgment entered thereon and any further action must be upon the judgment. State ex rel. v. Cox, 323 Mo. 520, 529, 19 S.W. 2d 695, 699, citing cases; 34 C.J. 752, Secs. 1163 et seq.; 30 Am. Jur. 903, Sec. 150 et seq. A reason advanced is that the judgment affords a superior right and a security of a higher nature which covers and extinguishes the inferior debt. The rule has its limitations in the justice of given situations. "The doctrine of merger will not, however, be carried any further than the ends of justice require; the judgment does not annihilate the debt . . . and when the essential rights of the parties are influenced by the original contract, the court will look behind the judgment for the purpose of ascertaining what the original contract was." 34 C.J. 752, Secs. 1163, 1164; 50 C.J.S. Judgments, Secs. 599, 600. "The law of merger does not forbid all inquiry into the nature of the cause of action. If the prevailing party was entitled to certain privileges, or exemption from certain burdens, under his contract he may be entitled to the same privileges and exemptions under his judgment. Whenever justice requires it, the judgment will generally be construed not as a new debt but as an old debt in a new form." 2 Freeman, Judgments, 5th Ed., 1172, Sec. 550. See also Id., Sec. 551; 30 Am. Jur. 903, Secs. 150, 158 et seq.; Wood on Limitations, 4th Ed., pp. 101, 237.

United States ex rel. Morton v. King (1896), 74 F. 493, is in point. It was a proceeding in mandamus to enforce a payment on a county warrant issued for the amount of a judgment obtained in 1878 and presented, protested, and certified on August 12, 1879, as to a lack of funds for payment (as the warrants in the instant case). Considerable money was in the fund by 1894 but payment was refused on the ground the warrants were barred by the 10-year statute of limitation. Suit followed, resulting in a general judgment against the County on December 7, 1894; Morton v. Knox County, 65 F. 369. The county court ordered the payment of the moneys in the fund on the judgment and further payments as multiples of $ 100 accumulated. After making certain payments, the county treasurer refused to pay $ 1,160 on the grounds, among others, that said judgment of 1894 merged all liability on the warrant and destroyed the incident of preference in payment and, as the county treasurer could pay only upon warrants, relator could not be paid since his warrant had merged in his judgment. In overruling the contentions, the court said in part: "The doctrine of merger, as applicable to this case, relates to the obligation or debt itself, and does not affect the remedial incident with which the law has clothed the debt. . . . The judgment on the warrant involved in this case ought, therefore, to carry with it the remedy inherent in the warrant itself and, in my opinion, this dictate of common honesty is supported by abundant authority." Two cases involving Missouri county obligations supporting the ruling are among the cases cited: United States ex rel. Harshman v. Knox County, 122 U.S. 306, 319, 7 S.Ct. 1171, 1176, 30 L.Ed. 1152; Ralls County v. United States, 105 U.S. 733, 26 L.Ed. 1220.

It has been observed in respect to judgments on county warrants that: ". . . a judgment founded on a county warrant gives no preference over the warrant as to payment." Sturdivant Bank v. Stoddard County, 332 Mo. 568 573, 58 S.W. 2d 702, 704. And: ". . . the status of any judgment obtained against the county on these warrants drawn on the county revenue fund would be subject to the same...