Driscoll v. Konze

• Decision Date: 09 March 1959
• Docket Number: No. 47089,No. 1,47089,1
• Citation: 322 S.W.2d 824
• Parties: Felicitas A. DRISCOLL, Appellant, v. Ernest R. KONZE, Respondent
• Court: Missouri Supreme Court

Page 824

322 S.W.2d 824

Felicitas A. DRISCOLL, Appellant, v. Ernest R. KONZE, Respondent.

No. 47089.

Supreme Court of Missouri, Division No. 1.

March 9, 1959.

Motion for Rehearing or to Transfer to Court en Banc Denied

April 13, 1959.

J. Ward Driscoll, Clayton, for appellant.

G. A. Buder, Jr., Richard O. Roberts, St. Louis, for respondent.

COIL, Commissioner.

Appellant, Felicitas A. Driscoll, herein referred to as plaintiff, has appealed from the trial court's judgment quashing the alias scire facias to revive a judgment which was personally served upon respondent, the alleged judgment debtor, referred to herein as defendant. The undisputed facts consist of excerpts from appropriate court records. An Adequate appreciation of the precise issue here presented requires a chronological statement of pertinent events covering the period from 1927 to 1958.

On January 12, 1927, Daniel F. Driscoll, present plaintiff's predecessor, recovered a judgment against Ernest R. Konze for $12,000. On January 11, 1937, plaintiff instituted an action on that judgment which, for instant purposes, we shall hereinafter treat as a proceeding to revive the 1927 judgment. On January 14, 1937, the defendant was served with process in that action. On September 22, 1938, the death of plaintiff, Daniel Driscoll, was suggested and on January 24, 1939, the cause was revived in the name of present plaintiff, Felicitas A. Driscoll, executrix. On April 19, 1939, a judgment was entered which, for present purposes, we shall consider a judgment purporting to revive the 1927 judgment. On April 9, 1949, plaintiff moved for a scire facias to revive the April 19, 1939, judgment and the writ was issued on April 11, 1949. Sometime prior to July 27, 1949, the sheriff made the following return thereon, 'After due and diligent search, the within named defendant, Ernest R. Konze, cannot be found in the City of St. Louis, Missouri.' On July 27, 1949, service by publication was ordered and the notice ordering defendant to show cause why the judgment of January 12, 1927, should not be revived was duly published. The defendant failed to appear and on October 29, 1949, a judgment purporting to revive the $12,000 1927 judgment was entered.

On February 10, 1956, plaintiff moved for a judgment debtor's examination and defendant was ordered to appear therefor on February 168 1956. (The transcript shows that the sheriff's return of service on such order was filed on February 13, 1956, but does not disclose the contents of that return.) On February 24, 1956, plaintiff filed a motion to charge defendant's interest in a certain partnership with the payment of the unpaid allegedly revived judgment and to appoint a receiver in connection therewith. Defendant's motion to quash those proceedings was sustained on March 29, 1956, and on appeal therefrom this court held (Driscoll v. Konze, Mo., 296 S.W.2d 31) the purported judgment of revival of October 29, 1949, was void because there had been no valid service by publication in that the order for publication was not based upon a finding by the court that the judgment debtor could not be found or served anywhere in the State of Missouri.

This court's mandate in that case was filed in the trial court on January 21, 1957, and on February 6, 1958, plaintiff moved for an alias scire facias to revive the judgment of April 19, 1939, the writ was issued, and defendant was personally served therewith on February 7, 1958. Thereafter, as stated, defendant's motion to quash was sustained and plaintiff appealed from the ensuing judgment.

It is defendant's position on this appeal that the trial court correctly sustained his motion to quash for two reasons: The original $12,000 judgment, entered on January 12, 1927, expired on January 12, 1937, by reason of Section 516.350 RSMo 1949, V.A.M.S., and thus the purported judgment of April 19, 1939, based on the expired 1927 judgment was a nullity; and even if the judgment of April 19, 1939, is assumed to have been a valid judgment, it was conclusively presumed to have been paid on April 19, 1949, by virtue of the provisions of Section 516.350, supra, and the abortive writ of scire facias issued prior to April 19, 1949, did not continue the 1939 judgment in effect until and at the time of the issuance of the alias writ in 1958.

It is plaintiff's position here that inasmuch as the suit on the January 12, 1927, judgment was instituted January 11, 1937, the ensuing judgment of April 19, 1939, was a valid judgment of revival of the 1927 judgment, and that inasmuch as a scire facias was issued on April 11, 1949, within ten years of the date of the 1939 judgment, that action (the issuance of the writ) made the 1939 judgment subject to revival for a period of ten years subsequent to the date of the Writ (April 11, 1949), and that therefore, inasmuch as the alias writ in question was issued and served by February 7, 1958 (within ten years subsequent to April 11, 1949), the instant alias writ was valid and the trial court erred in quashing it.

As noted, defendant's first contention is that by the terms and provisions of Section 516.350, supra, no valid judgment was entered on April 19, 1939. His supporting argument is that even though plaintiff instituted his suit on the original judgment within ten years of the date (January 12, 1927) of the original judgment, defendant was not served with process until two days after the expiration of ten years subsequent to the 1927 judgment and no judgment of revival was entered until April 19, 1939, approximately two years and three months after the expiration of the 10-year period following the date of the 1927 judgment and, consequently, the purported April 1939 judgment was a nullity. That conclusion follows, says defendant, because of a proper construction of Section 516.350, supra, which provides in pertinent part: 'Every judgment, order or decree of any court of record of the United States, or of this or any other state, territory or country, shall be presumed to be paid and satisfied after the expiration of ten years from the date of the original rendition thereof, or if the same has been revived upon personal service duly had upon the defendant or defendants therein, then after ten years from and after such revival, * * * and after the expiration of ten years from the date of the original rendition or revival upon personal service, * * * such judgment shall be conclusively presumed to be paid, and no execution, order or process shall issue thereon, nor shall any suit be brought, had or maintained thereon for any purpose whatever.' (Our emphasis.)

It is defendant's contention that that section, properly construed, prohibits any step in an uncompleted suit on a judgment after the expiration of ten years by reason of the explicit language, 'no execution, order or process shall issue thereon, nor shall any suit be brought, had or maintained thereon for any purpose whatever.' (Emphasis ours.) In other words, if a judgment is to be revived by a suit on the prior judgment, a judgment based upon such prior judgment must actually have been entered (i. e., the suit completed and nothing done thereafter) within the 10-year period following the date of the original judgment. Defendant relies upon the banc case of Wormington (Woolsey) v. City of Monett, 358 Mo. 1044, 218 S.W.2d 586, and specifically that portion of the opinion beginning at page 590. Although the portion of the Wormington opinion relied upon is specifically branded as dicta, it does support defendant's initial contention. In the view we take of this case, however, it is unnecessary to determine defendant's contention in that respect. And while, as noted, plaintiff's 1937 suit was a separate action based on the 1927 judgment and not a proceeding instituted by a scire facias, nevertheless we deem it important to observe that we do not understand the dicta in the Wormington case as dealing with or as purporting to deal with the situation where the revival is sought by a scire facias as opposed to a revival by a separate suit on the original judgment. So that, even if 'maintained' as used in Section 516.350 has the meaning ascribed to it in the Wormington dicta, the prohibition there is against the maintenance of 'any suit' on a pior judgment after the expiration of ten years and not against a proceeding by scire facias (a 'mere 'special proceeding' in continuance of and ancillary to the former suit in which the judgment was obtained,' State ex rel. Silverman v. Kirkwood, 361 Mo. 1194, 239 S.W.2d 332, 334[1, 2]) based upon a writ issued before the expiration of ten years from the date of the original judgment.

Consequently, it appears that the established rule obtains that if a writ of scire facias to revive a judgment is issued prior to the expiration of either the 10-year period referred to in Section 511.370 RSMo 1949, V.A.M.S. (providing when a writ of scire facias may issue) or in Section 516.350, supra (the presumption of payment statute), the order of revival may be made (in the sense that such action is not proscribed by either statute) after the expiration of the 10-year period. State ex rel. Silverman v. Kirkwood, supra, 239 S.W.2d 335; In re Jackman's Estate, 344 Mo. 49, 124 S.W.2d 1189, 1191; Kennedy v. Boden, Mo.App., 231 S.W.2d 862, 864, 865. And see Michael v. Smith, 95 U.S.App.D.C. 186, 221 F.2d 59, 52 A.L.R.2d 667, and annotation, 52 A.L.R.2d 672.

For purposes of this case, we shall assume, without deciding, that the judgment of April 19, 1939, was a valid judgment reviving the original 1927 judgment.

So assuming, we cannot agree fully with defendant's second contention, supra. That it to say, we do not agree that the fact, standing alone, that the original scire facias (issued within ten years of the 1939 judgment) returned with the notation that the defendant could not be found in St. Louis and consequently ineffective, meant that the 1939 judgment thereby expired,...