Bick v. Dixon

• Decision Date: 21 February 1910
• Citation: 126 S.W. 235,147 Mo. App. 69
• Parties: BICK v. DIXON.
• Court: Missouri Court of Appeals

126 S.W. 235

147 Mo. App. 69

BICK v. DIXON.

St. Louis Court of Appeals. Missouri.

February 21, 1910.

1. SCIRE FACIAS (§ 1)—NATURE OF REMEDY.

A proceeding by scire facias is not, strictly speaking, an action, but a mere continuation of and ancillary to the original action.

2. APPEAL AND ERROR (§ 925)—PRESUMPTIONS.

The court on appeal will indulge the presumption of regularity of the proceedings of the trial court and that the party complaining has put in all his probative facts.

3. APPEAL AND ERROR (§ 442)—TRANSFER OF CAUSE.

Pending an appeal from a judgment on the merits for defendant in an action on an original judgment, scire facias to revive the original judgment does not lie, whether the appeal was taken with or without a supersedeas bond.

Appeal from Circuit Court, Monroe County; David H. Eby, Judge.

Scire facias by J. J. Bick against Charles H. Dixon to revive a judgment. From a judgment for defendant, plaintiff appeals. Affirmed.

Scire facias to revive a judgment obtained before a justice of the peace of Monroe county, in which judgment J. J. Bick, the present plaintiff and appellant, was plaintiff, and Charles H. Dixon, the present respondent, was defendant; a transcript of the judgment having been filed in the office of the clerk of the circuit court of Monroe county. At the return term of the writ defendant filed a motion to quash, "because there is now pending on appeal from this court, to and in the St. Louis Court of Appeals, an appeal from the judgment of this court by the plaintiff from a judgment of this court on the same judgment upon which this said writ is issued." The motion coming on to be heard, it was submitted on the following stipulation, there being no evidence offered outside of the stipulation: "That this suit is a suit instituted by scire facias to revive a judgment, on which judgment a suit for a new judgment had been brought in this court, and on the trial of the merits of [same] judgment was entered in favor of defendant; and plaintiff in that case, the plaintiff in this case, duly appealed from the judgment of this court on the judgment entered in said cause; and that said appeal is now pending in the St. Louis Court of Appeals." The trial court sustained the motion to quash the writ, plaintiff excepting, and after an unsuccessful motion for new trial the case is here on appeal.

J. J. Bick (Peter T. Barrett and Abe Lowenhaupt, of counsel), for appellant. J. H. Whitecotton, for respondent.

REYNOLDS, P. J. (after stating the facts as above).

While counsel speak of this as "an action," a proceeding by scire facias is not, strictly speaking, an action, but a mere continuation of and ancillary to the original action. Sutton v. Cole, 155 Mo. 206, 55 S. W. 1052; Bick v. Tanzey, 181 Mo. 515, 80 S. W. 902. Judge Gantt, speaking for our Supreme Court, in Rodney v. Gibbs, 184 Mo. 1, loc. cit. 11, 82 S. W. 187, 189, and discussing the effect of an appeal, says: "Until reversed or set aside that decree was valid and binding, and although an appeal was then pending in this court, as it was taken without bond being given, it did not even suspend the judgment, nor prevent the enforcement of the decree by execution." Further along, and referring to the decision of Judge Thayer, in Ransom v. City of Pierre, 101 Fed. 665, 41 C. C. A. 585, in which Judge Thayer reached the conclusion that the weight of authority as well as reason is that when a case is removed to an appellate court by a writ of error or an appeal, and it is not to be tried there de novo, but is to be determined by an examination of the record, and the judgment either reversed or affirmed or modified, such an appeal or writ of error does not vacate the judgment below or prevent it from being pleaded or given in evidence as an estoppel upon issues that were tried and determined, unless some local statute provides that it shall not be so used pending the appeal. It is said by Judge Gantt (184 Mo., loc. cit. 14, 82 S. W. 190): "The question is not without its difficulties, from whatever...