Bick v. Tanzey

• Citation: 80 S.W. 902,181 Mo. 515
• Parties: BICK v. TANZEY.
• Decision Date: 10 May 1904
• Court: United States State Supreme Court of Missouri

80 S.W. 902

181 Mo. 515

BICK v. TANZEY.

Supreme Court of Missouri, Division No. 2.

May 10, 1904.

JUDGMENT—REVIVAL IN NAME OF ASSIGNEE—JURISDICTION —FILING AFFIDAVIT WITH JUSTICE—TRANSCRIPT OF DOCKET ENTRIES—PRESUMPTION.

1. At common law a judgment may not be revived in the name of its assignee.

2. A proceeding to revive a judgment is not an action within Rev. St. 1899, § 3748, providing that any action which the plaintiff in an assigned judgment might have had thereon may be maintained in the name of the assignee.

3. Under Rev. St. 1899, § 4023, providing that, to enable plaintiff to revive a judgment, he shall file an affidavit with the justice before whom it was rendered, and section 4024, providing that on the filing of the affidavit it shall be the justice's duty to cause citation to be served on defendant, the filing of the affidavit is necessary to give the justice authority to proceed.

4. The complete transcript of the docket entries in proceedings before a justice to revive a judgment being the only evidence before the court as to what was done in such proceedings, the absence of any entry therein showing the filing of the affidavit required by Rev. St. 1899, §§ 4023, 4024, to give the justice jurisdiction, raises a presumption that it was not filed.

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

Action by Frederick J. Bick against Benjamin H. Tanzey. Judgment for defendant. Plaintiff appeals. Affirmed.

W. T. Ragland, for appellant. J. H. Whitecotton, for respondent.

FOX, J.

Appellant's statement is substantially verified by the record in this cause, hence we practically adopt the statement made. It is as follows:

This is a suit in ejectment for possession of the land described in the petition, to wit: The west half of the west half of section eleven (11), and sixty-two acres off the south side of the south half of the southwest quarter of section two (2), all in township fifty-three (53), range ten (10), Monroe county, Mo. It was admitted that Millie V. Tanzey is the common source of title. On the 30th day of September, 1885, Millie V. Tanzey and Benjamin H. Tanzey, her husband, conveyed by their warranty deed to Temple B. Robinson eighty-two (82) acres of said land, viz.: Sixty-two (62) acres off of the south side of the southwest quarter of section two (2), and twenty (20) acres, the north half of the northwest fourth of the northwest quarter of section eleven (11), in township fifty-three (53), range ten (10), Monroe county. On the same day, September 30, 1885, Temple B. Robinson conveyed said land by his deed— a special warranty—to Benjamin H. Tanzey. On the 18th day of June, 1875, one Ephriam M. Poage recovered a judgment against Benjamin H. Tanzey for the sum of $265.61 for his debt, and $2.75 for his costs, before J. J. Armstrong, a justice of the peace in and for Jackson township, Monroe county, Mo. On the same day the justice issued execution on this judgment, and placed the same in the hands of the constable of Jackson township. At the request of the plaintiff the execution was renewed on the 17th day of September, 1875, and again on the 16th day of December, 1875. On the 15th day of March, 1876, the execution was returned nulla bona. On the 13th day of March, 1883, a transcript of this judgment was filed in the office of the clerk of the circuit court for Monroe county, Mo., and on the 24th day of April, 1895, the judgment was assigned to one J. J. Bick. The assignment was in writing on the margin of the record of the transcript judgment, and was signed by judgment plaintiff, Ephriam M. Poage. Afterwards the assignee, J. J. Bick, instituted such proceedings before the justice, said J. J. Armstrong, that a judgment was rendered by the latter reviving the original judgment in the name of Bick, the assignee. This judgment of revival was rendered on the 24th day of May, 1895. On the 6th day of September, 1895, execution was issued on this judgment, and placed in the hands of the constable of Jackson township. It was by him returned nulla bona on the 5th day of December, 1895. A transcript of the judgment as revived, and showing the issue and return of the execution thereon as above stated, was filed in the circuit clerk's office of Monroe county, on the 22d day of January, 1896. Execution issued on this transcript judgment to the sheriff of Monroe county January 25, 1896, under which all the right, title, interest, and estate of Benjamin H. Tanzey in all the land described in the petition was levied upon, sold, and the sheriff executed deed purporting to convey the land sold. The sheriff's deed was delivered to plaintiff October 26, 1896, and this suit was instituted February 6, 1897. The evidence shows that Benjamin H. Tanzey had title to 82 acres of the land sued for, being the land conveyed to him by Robinson at the time of the levy and sale under the execution issued against him. The evidence also shows that defendants Millie V. Tanzey and Robert E. Tanzey were and are in possession of this 82 acres. At the conclusion of plaintiff's testimony the court, at the request of defendants, gave an instruction in the nature of a demurrer to the evidence, and the jury accordingly returned a verdict for defendants. From the judgment rendered thereon plaintiff appeals.

The vital question involved in this controversy is in respect to the revival of the judgment before the justice of the peace, hence, to fully appreciate the proposition, it will be well to insert the revival proceeding as certified by the justice:

"State of Missouri, County of Monroe—ss.: Before J. J. Armstrong, Esq., Justice of the Peace of Jackson Township. Citation to Revive Judgment. J. J. Bick, Assignee of E. M. Poage, Plaintiff, vs. Ben. H. Tanzey, Defendant.

"April 25th, 1895, citation issued to defendant made returnable May 24th, 1895, at ten o'clock a. m., delivered to J. W. Clark, Constable. Said judgment was rendered by me on the 19th day of June, 1875, on suit on a note dated Nov. 11th, 1868, for one hundred sixty-nine and 90-100 dollars, bearing ten per cent. compound interest, credited May 11th, 1869, by thirty dollars. The judgment rendered June 19th, 1875, was for the sum of two hundred eighty-five and 91-100 dollars and two and 75-100 dollars cost.

"May 24th, 1895. Now comes the plaintiff, and it appearing from the return of the officer that the citation issued in this cause has been duly served on the defendant, and said defendant failing to appear and show cause why the judgment rendered by a justice of the peace of Jackson township, in Monroe county, on the 19th day of June, 1875, in favor of E. M. Poage, plaintiff, and against said defendant for the sum of two hundred sixty-five and 91-100 dollars should not be revived, it is therefore adjudged that said judgment be revived from this date, and that execution issue for the sum of two hundred sixty-five and 61-100 dollars, with interest at the rate of ten per cent., compounded per annum from date of the original judgment, and costs taxed in all at six and 70-100 dollars.

"Given under my hand this May 24th, 1895.

                                  "J. J. Armstrong, J. P
                

"I, J. J. Armstrong, justice of the peace in and for the township and county aforesaid, do certify the foregoing to be a full, true, and complete transcript of the entries in the case first above mentioned, as the same appears of record on my docket.

"Witness my hand this 24th day of May,

                1895.          J. J. Armstrong, J. P."
                

This transcript of the revival proceedings was filed in the office of the clerk of the circuit court.

It will serve no useful purpose to burden this statement, with copy of the sheriff's deed purporting to convey the land in controversy to the plaintiff; it will suffice to say that the deed recited the fact that the execution upon which the levy was made and land sold was issued in favor of J. J. Bick, assignee of E. M. Poage, and against the said Benjamin H. Tanzey, dated the 25th day of January, 1896. Plaintiff claims title under the sheriff's deed. This is a sufficient statement to enable us to dispose of the legal questions presented by the record in this...