Cobb v. Houston

• Decision Date: 27 March 1906
• Citation: 94 S.W. 299,117 Mo. App. 645
• Parties: COBB v. HOUSTON.
• Court: Missouri Court of Appeals

94 S.W. 299

117 Mo. App. 645

COBB v. HOUSTON.

St. Louis Court of Appeals. Missouri.

March 27, 1906.

Rehearing Denied May 8, 1906.

1. LIMITATION OF ACTIONS — ABSENCE FROM STATE.

By the common law a statute of limitations is suspended during the defendant's nonresidence.

2. PAYMENT — PRESUMPTIONS — LAPSE OF TIME.

Gen. Laws 1865, p. 749, c. 191, § 31, provided that every judgment should be presumed to be paid after 20 years from rendition thereof, but that in any suit in which the party against whom such judgment was rendered was a party the presumption might be repelled by written acknowledgement or proof of payment of some part of the amount recovered by the judgment, but that in all other cases it should be conclusive. Held, that the statute is not one of limitation, and the absence of a judgment debtor from the state did not affect the running of time in favor of the presumption.

3. APPEAL—THEORY OF CASE.

Where one tries a case upon a certain theory, he cannot, on appeal, shift his position and have it determined on a different theory.

Appeal from St. Louis Circuit Court; Moses N. Sale, Judge.

Action by Seth W. Cobb against A. Houston. From a judgment in favor of plaintiff, defendant appeals. Reversed.

Virgil Rule, for appellant. Wm. H. Clopton, for respondent.

BLAND, P. J.

On the 11th day of February, 1879, the plaintiff recovered a judgment in the circuit court of the city of St. Louis against defendant for $437.50, with interest from the date thereof at the rate of 6 per cent. per annum. The present suit is founded on this judgment. The petition alleged "that at the time of the institution of said suit and the rendition of said judgment defendant was a resident of this state; that defendant departed from the state of Missouri in June, 1883, and has resided continuously since that date beyond the limits of the state of Missouri," and alleged that the judgment had never been paid, and prayed judgment for the $437.50, with interest. Summons was issued on November 17, 1903, and duly served on the defendant, who appeared and filed the following answer: "Comes now the defendant in the above-entitled cause and for his answer the plaintiff's petition herein admits that about the year 1879 plaintiff instituted a suit against defendant in the circuit court, city of St. Louis, state of Missouri, and obtained a verdict and judgment therein, but denies that any part of said judgment has not been paid, and avers that said judgment has long since been fully settled, satisfied, and paid. And also avers that any action on said judgment is barred by reason of the statute of limitations of this state, then and there in force at the time said judgment was obtained, which said statute was passed 1857 (Laws Mo. 1856-57, p. 80, art. 3, § 16; Gen. St. Mo. 1865, p. 749, § 31). Defendant admits that he departed from the state of Missouri in the year 1883, and has resided continuously since said year in the state of California, and denies each and every other allegation in said petition contained, not herein specifically admitted to be true." The issues were submitted to the court sitting as a jury. Plaintiff, to sustain the issues on his part, offered in evidence the judgment sued on. Defendant objected to the judgment as evidence, "because the petition on its face did not state facts sufficient to constitute a cause of action against defendant, and because, said judgment showing on its face that it was 20 years old, it was incompetent and immaterial, and was barred by prescription and the statute of limitations; the presumption being that it had been paid." The objection was overruled and the judgment was read in evidence. This being all the evidence offered, the court rendered judgment for plaintiff for $1,116.94. After unsuccessful motions for new trial and in arrest of judgment, filed in due time, defendant appealed to this court.

1. Suit having been brought more than 20 years after the judgment sued on was rendered, the first question presented for consideration is whether or not it was barred by the statute of limitations in force on the date the judgment was rendered. It is conceded by both parties that the 20-year statute of limitations applies, and that the suit is barred unless the absence of the defendant from the state stopped the running of the statute.

At the session of the Legislature (1856-57) an act, entitled "Limitations," consisting of three articles, was passed and approved February 24, 1857. Laws 1856-57, p. 76. The first article deals exclusively with actions for the recovery of lands, tenements, and hereditaments. The second article (page 77) deals with personal actions, prescribing the time in which they may be brought after the right of action has accrued. The twelfth and last section of this article (page 78) prescribes: "If, at any time, when any cause of action, specified in this article, accrues against any person * * * such person depart from, and reside out of, this state, the time of his absence shall not be deemed or taken as any part of the time limited for the commencement of such action." It is conceded that actions on judgments are not mentioned or included in this article. Article 3 (page 79) of the act relates to the commencement of suits and the persons and cases exempt from the act. The sixteenth section of the third article (page 80) reads as follows: "Every judgment, order and decree of any court of record of the United States, or of this or any other State or Territory, shall be presumed to be paid and satisfied after the expiration of twenty years from the day of the rendition of such judgment, or order, or decree; but in any suit in which the party against whom such judgment, order or decree, was rendered, or his heirs or personal representatives, shall be a party, such presumption may be repelled by proof of payment, or of written acknowledgment of indebtedness, made within twenty years, of some part of the amount recovered by such judgment, order or decree; in all other cases it shall be conclusive." The act remained intact until the 1865-66 session of the Legislature, at which session a joint committee of the two houses was appointed to collate and classify the general laws of the state. The committee, in arranging and classifying the general laws, collated them under the headings of titles and chapters, in numerical order, doing away entirely with classification by articles. By this arrangement the three articles of the act of 1856-57 are grouped in one chapter. Chapter 191, p. 745, Gen. Laws 1865. The sixteenth section of the chapter is the same as section 12, art. 2, p. 78, Acts 1856-57, with this exception: for the phrase "specified in this article," the words, "herein specified," are substituted. Section 31 of the chapter and section 16 of the third article of the Act of 1856-57, are identical. The substitution of the words, "herein specified," in section 16, for the words, "specified in this article," in the original act, makes the section apply to the whole act, whereas in the original act it only applied to actions enumerated under article 2 of the act. Actions on judgments are not among them.

Defendant contends that the substitution was necessary to conform the wording of the section to the change of classification from articles to chapters, and that the law itself was not changed, and that the section only applies to the sections that were embraced in article 2, of the act of February 24, 1857. It is the settled law that if a new enactment is carried in ipsissimis verbis into a revision of the general laws and placed in an article or chapter, in which other sections are classed, that gives it an enlarged or restricted meaning, if interpreted with reference to such other sections, that it is not to be so interpreted, but should be construed as disasociated with such other sections. Paddock v. Railroad, 155 Mo. 524, 56 S. W. 453. If the new act creates an exception to the provisions of other sections of the act and they with it, and still other sections in pari materia are carried into the revision under one title and chapter, and the terms of the act are so changed as to make it apply to a section grouped with it, to which it did not originally apply, it seems to us the act should be construed as a new or amended section, especially when to so construe it makes all the sections under the one title harmonious and uniform, and we conclude that if the section in regard to the presumption of payment of judgments, after the lapse of twenty years from the date of their rendition, is a statute of limitation, section 16 applies as well to it as to other sections of the chapter, limiting the time in which suits may be brought after right of action has accrued.

On the second hearing of the case, and in additional briefs filed, defendant contends that section 31, c. 191, p. 749, Gen. Laws 1865 is not a statute of limitation, but a statute creating an artificial presumption and establishing a rule of evidence by which the presumption may be repelled. In his answer defendant expressly pleaded the section as a statute of limitation, and denominated it a statute of limitation, and the case was tried on the theory that the statute limited the time in which a suit could be brought on a judgment to 20 years from the date of its rendition, and that the statute also created a presumption that the judgment was conclusively presumed to be paid after the lapse of 20 years from its rendition. Where a party tries a cause on a pleading filed by him, in which he has made admissions against his interests, he is estopped to contradict such admissions; and where he tries a case upon a certain theory he cannot, on appeal, shift his position and have his case determined upon a different theory. Gayle v. Missouri Car & Foundry Co., 177 Mo. 427, 76 S. W. 987; Dice v. Hamilton, 178 Mo. 81, 77 S. W. 299; Meyer Bros. Drug Co. v. Bybee, 179 Mo. 354, 78 S. W. 808; Heman v. Larkin, 108 Mo....