Bick v. Robbins

• Decision Date: 26 May 1908
• Citation: 131 Mo. App. 670,111 S.W. 612
• Parties: BICK v. ROBBINS.
• Court: Missouri Court of Appeals

111 S.W. 612

131 Mo. App. 670

BICK v. ROBBINS.

St. Louis Court of Appeals. Missouri.

May 26, 1908.

1. JUDGMENT—ASSIGNMENT—ACTION BY ASSIGNEE.

Rev. St. 1899, § 3745 (Ann. St. 1906, p. 2089), authorizes the assignment of judgments, and provides that such assignments, when properly made of record, shall vest the title in such judgment in the assignee, and section 3748 provides that any action which plaintiff in such judgment might have thereon may be maintained in the name of the assignee. Held, that the assignee may maintain in his own name an action on a judgment, though he could not, as assignee, maintain scire facias to revive the judgment in his own name.

2. SAME—LIMITATION OF ACTIONS—RETROACTIVE OPERATION — CHANGE OF PERIOD OF LIMITATION—EFFECT ON EXISTING CAUSES OF ACTION.

Acts 1895, p. 221 (Rev. St. 1899, § 4297 [Ann. St. 1906, p. 2364]), reducing the limitation of actions on judgments from 20 to 10 years, does not operate retroactively on an existing judgment, but, failing to provide for existing judgments, the 10-year limitation therein provided commenced to run as to such judgments at the date of its taking effect.

3. SAME—ACTIONS ON JUDGMENTS—DEFENSES.

It is no defense to a proper action on a judgment by an assignee thereof that previous judgments of revival thereof were invalid because in the name of the assignee.

Error to Circuit Court, Monroe County; David H. Eby, Judge.

Action by J. J. Bick against John Robbins. Defendant had judgment, and plaintiff brings error. Reversed.

J. J. Bick, in pro. per. Whitecotton & Barnes, for defendant in error.

NORTONI, J.

This is a suit on a judgment. At the conclusion of the plaintiff's evidence, the court declared the law, at the instance of defendant, that under the pleadings and the evidence plaintiff could not recover. Plaintiff sued out this writ of error. The evidence on the part of plaintiff is to the effect that one W. R. Wilkerson on April 18, 1891, obtained a judgment against the defendant before a justice of the peace of Monroe county for the sum of $29.39 on a promissory note. Execution was issued thereon by the justice, and renewed several times. It was finally returned unsatisfied. It appears the present plaintiff, Bick, purchased the judgment from the plaintiff therein on August 24, 1893, and the same was properly assigned to Bick, the present plaintiff, by Wilkerson, on the record, in accordance with the statute. Section 3745, Rev. St. 1899 (Ann. St. 1906, p. 2089). On the following day plaintiff, Bick, caused a transcript thereof to be filed in the office of the clerk of the circuit court, as provided in section 4018, Rev. St. 1899 (Ann. St. 1906, p. 2191). The records of that court were introduced showing that a scire facias was issued out of the circuit court to revive this judgment on April 19, 1894; that judgment of revival was entered in accordance therewith November 2, 1894; that a second scire facias was issued out of the circuit court March 12, 1898, for the purpose of reviving the judgment, and a judgment of revival thereon was had April 27, 1899. It appears the judgment has never been satisfied. As stated above, the court declared the plaintiff was not entitled to recover. The record fails to indicate upon what theory this judgment was given. It is to be gleaned, however, from the arguments presented in the briefs the court was of the opinion that, because the action was brought in the name of Bick as assignee of the judgment, it could not be sustained. This view would be entirely proper were the proceeding one to revive a judgment by scire facias, as has been recently determined by our Supreme Court in Bick v. Tanzey, 181 Mo. 515, 80 S. W. 902. The proposition of law referred to does not obtain, however, with reference to the prosecution of a suit on a judgment by the assignee thereof. Our statute (section 3745, Rev. St. 1899 [Ann. St. 1906, p. 2089]) authorizes the assignment of judgments, and provides that such assignments, when properly made of record as in this case, "shall vest the title to such judgment in each assignee thereof successively." Section 3748, Rev. St. 1899 (Ann. St. 1906, p. 2089]), provides that "any action which the plaintiff in such a judgment might have thereon may be maintained in the name of the assignee." No one will deny that had the original plaintiff, Wilkerson, continued to own the judgment, he could have maintained suit thereon against the defendant therein, if the same remained unsatisfied, as it did. By the assignment to Bick the identical right accrued to him. Bick v. Tanzey, supra; 17 Amer. & Eng. Ency. Law (2d Ed.) 881-882; section 3748, Rev. St. 1899 (Ann. St. 1906, p. 2089). In the case of Sutton v. Cole, 155 Mo. 206, 55 S. W. 1052, a distinction was pointed out between an action and a proceeding by scire facias to revive a judgment. The case of Bick v. Tanzey, supra, reaffirms the distinction mentioned, and declares that the statute (section 3748, supra) authorizing the assignee of a judgment to maintain any action which could have been maintained by the original plaintiff therein does not obtain with respect to a scire facias; that is to say, that case affirms that, although the assignee of a judgment might maintain a suit thereon in his own name, no authority is given for proceedings to revive the judgment in the name of the assignee. The latter proceeding, it is said, must be had in the name of the original plaintiff or his legal representatives, as provided in section 3715, Rev. St. 1899 (Ann. St. 1906, p. 2083).

The introduction in evidence of the two scire facias proceedings had on the judgment in the circuit court and the judgments thereon reviving the same no doubt confused the issue to some extent. It is argued here on the part of defendant in error that the judgment must be affirmed for the reason it appears the judgment sued on is a judgment revived by scire facias in the name of J. J. Bick, the assignee thereof, which has been determined to be incompetent by the case of Bick v. Tanzey, supra. Indeed, if it appeared that the judgment sued upon was a judgment revived by Bick as assignee, the argument would be sound, under the authority of the case cited. But such is not the case presented. The suit is on the original judgment of Wilkerson...