Chiles v. School District of Buckner

• Decision Date: 23 November 1903
• Citation: Chiles v. School District of Buckner, 103 Mo.App. 240, 77 S.W. 82 (Kan. App. 1903)
• Parties: JOEL F. CHILES, Appellant, v. SCHOOL DISTRICT OF BUCKNER, etc., Respondent
• Court: Kansas Court of Appeals

77 S.W. 82

103 Mo.App. 240

JOEL F. CHILES, Appellant, v. SCHOOL DISTRICT OF BUCKNER, etc., Respondent

Court of Appeals of Missouri, Kansas City

November 23, 1903

Appeal from Jackson Circuit Court.--Hon. J. H. Slover, Judge.

REVERSED AND REMANDED (with directions).

Judgment reversed and cause remanded.

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

(1) The statute applicable to this case is that which was in force in 1880, when the judgment was rendered. This statute is section 3251 of the Revised Statutes of 1879, which is the same as section 6796 of the Revised Statutes of 1889. Cranor v School District, 151 Mo. 119; McFaul v. Haley, 166 Mo. 56. (2) This statute was first enacted in 1835 and is not a statute of limitation, but is one establishing a rule of evidence. R. S. 1835, p. 396, sec. 1; Clemens v Wilkinson, 10 Mo. 97; Smith v. Benton, 15 Mo 371; Gaines v. Miller, 111 U.S. 395, 28 L.Ed. 466; Denny v. Eddy, 22 Pick. 533; Walker v. Robinson, 136 Mass. 280; Day v. Crosby, 173 Mass. 433; Knight v. Macomber, 55 Maine 132; Woodruff v. Sanders, 15 Ark. 143. (3) It is not necessary that the "acknowledgment of indebtedness" mentioned in the statute should contain a promise, expressed or implied, to pay the judgment. All that is required is that it shall be an acknowledgment of the judgment as a subsisting indebtedness. Cape Girardeau County v. Harbison, 58 Mo. 90; Knight v. Macomber, 55 Maine 132; 19 Am. and Eng. Ency. of Law (2 Ed.), 149, 150; Reed v. Reed, 46 Pa. St. 239. (4) The answer filed by defendant in the suit of 1897, and the return filed by it to the alternative writ of mandamus in 1901, were competent evidence against it. Dowzelot v. Rawlings, 58 Mo. 75; Anderson v. McPike, 86 Mo. 293; Schad v. Sharp, 95 Mo. 573; Snyder v. Railroad, 112 Mo. 527; Spurlock v. Railroad, 125 Mo. 404; Murphy v. Type Foundry, 29 Mo.App. 541; Fry v. Estes, 52 Mo.App. 1. (5) The acknowledgments of indebtedness were sufficient to repel the presumption of payment arising from the lapse of time. Cape Girardeau County v. Harbison, 58 Mo. 90; Knight v. Macomber, 55 Maine 132; Bissell v. Jaudon, 16 Ohio St. 498; Breneman's Appeal, 121 Pa. St. 641.

Paxton & Rose for respondent.

(1) The revival by scire facias in 1891 did not stop the running of the statute of limitations. Walsh v. Basse, 16 Mo.App. when decided contrary to George v. Middough, 62 Mo. 549, and overruled and declared not to be the law in Sutton v. Cole, 155 Mo. 206. (2) The alleged admissions in the answer and return can not be taken as acknowledgments of indebtedness, because such admissions were not unqualified. Wood on Limitations (3 Ed.), sec. 70; Chambers v. Ruby, 47 Mo. 99; Kirkbride v. Gash, 34 Mo.App. 256; McLean v. Thorpe, 4 Mo. 256. (3) The alleged admissions can not be taken as an acknowledgment of indebtedness because they were made in hostile proceedings where the school district was trying to defeat the collection of this very judgment. Wood on Limitations (3 Ed.), p. 204, sec. 73 (note, also, p. 234, sec. 85); Bloodgood v. Bruen, 4 Selden 362. Ins. Co. v. Brett, 44 Barb. 489; Holberg v. Jeffray, 65 Miss. 526; McMillan v. Leeds, 49 P. 159; Deys v. Jones, 19 Wend. 491. (4) Section 3251, Revised Statutes of 1879, was part of the statute of limitations because ever since 1835 it has been classified by the Legislature under the head of "limitations," and because it has been called a statute of limitation by the appellate courts. R. S. 1835, 1845, 1855, 1865, 1879, 1889, 1899; Laws of 1895, p. 221; Laws of 1899, p. 300; Cranor v. School District, 81 Mo.App. 152; s. c., 151 Mo. 119. (5) The word "acknowledgment," as used at common law in connection with limitations, was only used in connection with simple contracts, and had no application to judgments and other specialties; and when the Legislature introduced this word "acknowledgment" into the law of judgments, it came in with the meaning it had formerly had in the law of simple contracts, and indicated an intention on the part of the Legislature to assimilate the law of the limitation of judgments to the law of limitation of simple contracts. 19 Am. and Eng. Ency. of Law (2 Ed.), p. 289; Collins v. Wilhoit, 35 Mo.App. 585, 589. (6) A pleading filed in another case by an attorney is admissible against his client; but it is not conclusive, and the client may show that it was not authorized. Nichols v. Jones, 32 Mo.App. 657, 664; Murphy v. Gillum, 79 Mo.App. 564; 8 Ency. of Pleading and Pr., pp. 20, 21, 22; Anderson v. McPike, 86 Mo. 293, 306. See also, Stover v. Duren, 3 Strobhart (S. C.), 448.

OPINION

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 creditor's bill and also in its return made to the writ in a proceeding against it by mandamus.

The defendant's answer to the creditor's 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 twenty 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 twenty 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 twenty years, of some part of the amount recovered by such judgment, and in all other cases it shall be conclusive. R. S. 1879, sec. 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 twenty 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, the last of which was May 2, 1858. Defendant pleaded the statutes of limitation in ordinary form. Plaintiff replied, alleging two several acknowledgments in writing, within ten years before the commencement of suit, one by the administrator of the deceased Harbison and the other by the defendant. The one by the defendant was contained in a deed of trust executed by him in 1866 to one English, in which it was stated that the land in question was mortgaged by the deceased Harbison to the county of Cape Girardeau "for the sum expressed in said mortgage and which yet remains unsatisfied." The court held that the statute of limitations did not apply because there was shown no adverse possession by the mortgagor or any one claiming under him as against the mortgagee. It also held that by analogy to the statute of limitations they would presume that the debt which the mortgage was given to secure was paid ten years after the last payment in the absence of an acknowledgment to the contrary. In pointing out the distinction between the statute of limitations and the presumption of payment, the court said: "There is no sort of propriety in confounding the statute of limitations with the presumption of payment arising from the lapse of time. As defenses the two are wholly distinct in their...