City of St. Louis v. Miller

• Decision Date: 19 December 1940
• Citation: 145 S.W.2d 504,235 Mo.App. 987
• Parties: CITY OF ST. LOUIS, A MUNICIPAL CORPORATION, PLAINTIFF IN ERROR, v. J. F. MILLER ET AL., DEFENDANTS; CONGREGATION SHAARE ZEDEK, A CORPORATION, DEFENDANT IN ERROR
• Court: Missouri Court of Appeals

145 S.W.2d 504

235 Mo.App. 987

CITY OF ST. LOUIS, A MUNICIPAL CORPORATION, PLAINTIFF IN ERROR, v. J. F. MILLER ET AL., DEFENDANTS; CONGREGATION SHAARE ZEDEK, A CORPORATION, DEFENDANT IN ERROR

Court of Appeals of Missouri, St. Louis

December 19, 1940

Appeal from the Circuit Court of the City of St. Louis.--Hon. Ernest F. Oakley, Judge.

REVERSED AND REMANDED.

Order reversed and cause remanded.

E. H Wayman, Francis J. Sullivan and Samuel M. Watson for plaintiff in error.

(1) Sec. 1106, R. S. Mo. 1929. (2) Black's Law Dictionary, (3 Ed.), pp. 1432 and 1433. (3) It is the duty of the clerk of the circuit court to obey the commands of the judge of the court in all matters pertaining to the work of the court, and it is said clerk's duty to "issue and attest all process when required by law." Sec. 11676, R. S. Mo 1929. (4) When the petition was duly presented to the court and when a court order ordering that said writ issue was duly entered pursuant to the prayer of said petition. Sec. 1106 R. S. Mo. 1929; Richards Brick Co. v. Wright et al., 82 S.W.2d 274, 280; South Mo. Lbr. Co. v. Wright, 114 Mo. 326, 333; Gosline v. Thompson, 61 Mo. 471; 2 Wagoner's Mo. Statutes, p. 1006. (5) Gosline v Thompson, 61 Mo. 471; 2 Wagoner's Mo. Statutes, p. 1006; South Mo. Lbr. Co. v. Wright, 114 Mo. 326. (6) Secou v. Leroux, 1 N. Mex. 388-389; Taylor v. Chapman, 173 So. 143, 127 Fla. 401; Burnside v. Wand, 170 Mo. 531, 543; Wilmerding v. Corbin Banking Co., 28 So. 640, 126 Ala. 268.

Louis Yaffe for Congregation Shaare Zedek, defendant in error.

(1) Jackman Estate, 124 S.W.2d 1189; Peak v. Peak, 181 S.W. 394; Glidden Felt Manufacturing Co. v. Robinson, 143 S.W. 1111; Bick v. Vaughn, 120 S.W. 618; Armstrong v. Crooks, 83 Mo.App. 141. (2) Writ of scire facias is not an ordinary action. Armstrong v. Crooks, 83 Mo.App. 141. (3) Armstrong v. Crooks, 83 Mo.App. 141; Longlett v. Eisenberg, 10 S.W.2d 317; Bick v. Vaughn, 120 S.W. 618. (4) Clerk can issue a writ of scire facias without application or petition. Longlett v. Eisenberg, 10 S.W.2d 317; Sutton v. Cole, 155 Mo. 206; Peak v. Peak, 181 S.W. 394; Bick v. Vaughn, 120 S.W. 618.

SUTTON, C. Hughes, P. J., and Becker and McCullen, JJ., concur.

OPINION

SUTTON, C.

--This is an action, suit, or proceeding, by scire facias, for the revival of a judgment in favor of plaintiff City of St. Louis against defendant Congregation Shaare Zedek, hereinafter referred to as the defendant. The judgment was entered on March 7, 1928, for the sum of $ 177, in a condemnation suit for the widening of Easton Avenue in said city.

The petition for a writ of scire facias was filed on March 5, 1938. It described the judgment, alleges that the judgment remains unsatisfied and unpaid, and prays that the judgment be revived, and that a writ of scire facias issue commanding defendant to appear and show cause, if any there be, why the judgment should not be revived. Upon the filing of the petition, the court, on the same day, ordered that a writ of scire facias issue, as in the petition prayed, commanding defendant to appear, at the April term of said court, and show cause, if any there be, why the judgment should not be revived.

Pursuant to said petition and order, a writ of scire facias, dated March 8, 1938, was issued by the clerk, directed to the sheriff of the City of St. Louis. The writ recites that plaintiff City of St. Louis, on March 7, 1928, by the judgment of the circuit court, recovered against defendant the sum of $ 177 debt, together with interest thereon, and the costs and charges in that behalf expended, that "it has been suggested to us that although judgment thereof is given, yet execution of the debt, interest and costs aforesaid still remain to be levied, that no part of said judgment has been paid, and said judgment remains unsatisfied and is still due," and commands the sheriff to summon defendant to be and appear in said court on the first day of the next term thereof to be held at the City of St. Louis on the first Monday of April next, then and there to show cause, if any there be, why said judgment should not be revived, and further to do and receive whatever the said court shall then and there adjudge concerning the premises.

On April 5, 1938, defendant filed a motion to dismiss the scire facias. The ground for the dismissal, as specified in the motion, is that the writ was issued after ten years from the date of the judgment. On December 31, 1938, the court, having taken the motion to dismiss under advisement, entered its order sustaining the motion and dismissing the scire facias.

Plaintiff has brought the case here by writ of error.

Plaintiff insists that the court erred in dismissing the scire facias. Defendant justifies the dismissal on the ground that plaintiff did not sue out the scire facias within ten years from the rendition of the judgment as required by section 1106, R. S. 1929, Mo. St. Ann., sec. 1106, p. 1401, which reads as follows:

"The plaintiff or his legal representative may, at any time within ten years, sue out a scire facias to revive a judgment and lien; but after the expiration of ten years from the rendition of the judgment, no scire facias shall issue."

In other words, defendant contends that although plaintiff filed its petition for the scire facias within ten years, yet, inasmuch as the writ was not issued until after the expiration of ten years, scire facias is barred by the limitation of the statute. There is thus raised a question not hitherto decided in this State or elsewhere so far as we are advised.

A scire facias, at common law, is defined as a judicial writ, as distinguished from an original writ, founded on some matter of record, such as a judgment or a recognizance. It is also the name used to designate both the writ and the whole proceeding. The writ, at common law, occupies the place of both petition and process, and the filing of a petition is therefore not necessary.

At common law, scire facias to revive a judgment is not regarded as a new action or suit, but is regarded as a continuation of the prior proceeding.

Section 724, R. S. 1929, Mo. St. Ann., sec. 724, p. 940, reads as follows:

"Suits may be instituted in courts of record, except when the statute law of this State otherwise provides, either, first, by filing in the office of the clerk of the proper court a petition setting forth the plaintiff's cause or causes of action, and the remedy sought, and by the voluntary appearance of the adverse party thereto; or, second, by filing such petition in such office, and suing out thereon a writ of summons against the person or of attachment against the property of the defendant. The filing of a petition in a court of record, or a statement or account before a court not of record, and suing out of process therein, shall be taken and deemed the commencement of a suit."

It has been repeatedly held by our Supreme Court, and the Courts of Appeals as well, that a suit in a court of record is commenced, with the meaning of this section, so as to save the suit from the bar of the Statute of Limitations, when the petition is filed, even though process is not thereafter issued until the period of limitation has run. [McGrath v. St. Louis, Kansas City & Colorado R. Co., 128 Mo. 1 9, 30 S.W. 329; State ex rel. Bair v. Producers Gravel Co., 341 Mo. 1106, 111 S.W.2d 521; South Missouri Lumber Co. v. Wright, 114 Mo. 326, 21 S.W. 811; Gosline v. Thompson, 61 Mo. 471; Richards Brick Co. v. Wright (Mo. App.), 82 S.W.2d 274, 280; State ex rel. Brown v....