Chiles v. School Dist. of Buckner

• Decision Date: 23 November 1903
• Citation: 77 S.W. 82,103 Mo. App. 240
• Court: Missouri Court of Appeals
• Parties: CHILES v. SCHOOL DIST. OF BUCKNER.<SMALL><SUP>*</SUP></SMALL>

77 S.W. 82

103 Mo. App. 240

CHILES v. SCHOOL DIST. OF BUCKNER.^*

Court of Appeals at Kansas City, Missouri.

November 23, 1903.

ACTION ON JUDGMENT — STATUTORY PRESUMPTION OF PAYMENT — ACKNOWLEDGMENT OF INDEBTEDNESS — SUBSEQUENT LEGISLATION.

1. Under Rev. St. 1879, § 3251, providing that judgments "should be presumed to be paid and satisfied after the expiration of twenty years, * * * but in any suit in which the party against whom such judgment was rendered shall be a party such presumption may be repelled by proof of payment or written acknowledgment of indebtedness made within twenty years," a mere written acknowledgment that the judgment is unpaid, though unaccompanied by any promise to pay, is sufficient to rebut the presumption thereby created; as the statute is not one of limitations, but merely prescribes a rule of evidence.

2. Laws 1895, p. 221, amending Rev. St. 1889, § 6796 (now Rev. St. 1899, § 4297), provides that every judgment shall be presumed to be paid after 10 years, or, if it has been revived, then after 10 years from such revival, etc. Rev. St. 1889, § 6797 (now Rev. St. 1899, § 4298), provided that the provisions of the chapter should not apply to rights of action accruing before it took effect. Held, that a judgment obtained before the act of 1895 was governed by the law previously in force, and was not affected by that act.

3. A statute providing the period within which a judgment shall be presumed to have been paid confers a vested right, which the Legislature cannot disturb by subsequent legislation.

Appeal from Circuit Court, Jackson County; J. H. Slover, Judge.

Action by Joel F. Chiles against the School District of Buckner. Judgment for defendant, and plaintiff appeals. Reversed.

Peak & Strother, Yeager & Yeager, and John A. Sea, for appellant. Paxton & Rose, for respondent.

SMITH, P. J.

On July 19, 1880, a judgment was given in favor of plaintiff and against defendant for $163.75. On June 20, 1890, a writ of scire facias was sued out, and said judgment revived April 10, 1891. On September 27, 1901, this action was brought. The petition is in two counts, the first of which seeks to recover upon the judgment and the revivor of it. The second alleges the rendition and revivor of it, and to repel the presumption of payment arising from the lapse of time sets out certain acknowledgments of indebtedness in writing, made in 1897 by defendant in its answer in an action against it in the nature of a creditors' bill, and also in its return made to the writ in a proceeding against it by mandamus. The defendant's answer to the creditors' bill, as set forth in the petition herein, admitted the recovery of the judgment against it on July 19, 1880, on a certain school warrant, and alleged that the money then in the county treasury was not levied and collected for the payment of plaintiff's judgment, but was collected for teachers' salaries and the incidental expenses of said school, and "that plaintiff has allowed interest to accumulate on his judgment for many years, so that, if it were now paid by said district, there could be no school in said district for next winter; that the law is especially solicitous for the welfare of the children of the district, and the directors thereof do not feel that they are justified in paying out the money of the district for purposes other than that for which it was collected." And the return to the writ of mandamus in effect admitted the rendition of the original judgment of 1880, its revival in 1891, and that, as revived, it was still in force, and that no part of it had been paid, though due and owing relator, etc. The defendant's answer pleaded the lapse of 20 years since the rendition of the judgment and the statute of limitations in bar. The cause was tried before the court, a jury being dispensed with. At the conclusion of all the evidence the defendant requested an instruction in the nature of a demurrer, which was by the court given, and judgment entered accordingly for defendant, and the plaintiff appealed.

The statute in force at the time of the rendition of the judgment in 1880 provided that every judgment of any court of record of this state should be presumed to be paid and satisfied after the expiration of 20 years from the day of such judgment; but in any suit in which the party against whom such judgment was rendered shall be a party such presumption may be repelled by proof of payment or written acknowledgment of indebtedness made within 20 years of some part of the amount recovered by such judgment, and in all other cases it shall be conclusive. Rev. St. 1879, § 3251. This section was carried forward into the Revision of 1889 as section 6796. It is thus seen that this section of the statute prescribes no limit for instituting an action on a judgment of a court of record, but merely declares that the legal presumption of payment of such judgment shall arise after the expiration of 20 years. Knight v. Macomber, 55 Me. 132. In Cape Girardeau County v. Harbison, 58 Mo. 90, the distinction was clearly pointed out between the statute of limitations and the rules in regard to the presumption of payment arising from lapse of time. It was a suit to foreclose a mortgage given by one Harbison to the plaintiff in 1849. The mortgagor died afterwards, and in 1864 the land was sold for the payment of his debts, the defendant Harbison being the purchaser. The bond secured by the mortgage had a number of payments indorsed upon it,...