Ellis v. Jones

• Decision Date: 31 January 1873
• Citation: 51 Mo. 180
• Parties: JOHN P. ELLIS, Respondent, v. HENDERSON JONES, Appellant.
• Court: Missouri Supreme Court

51 Mo. 180

JOHN P. ELLIS, Respondent,

v.HENDERSON JONES, Appellant.

Supreme Court of Missouri.

January Term, 1873.

John S. Phelps, for Appellant.

The writ of scire facias is a judicial writ; no petition is necessary to base it upon; and it is a continuation of the former suit; 2 Tidd, 1096, 4th American edition; Humphreys vs. Lundy 37 Mo., 320; State Treasurer vs. Foster, 7 Penn. St., 65; Graham's Practice, 661, 663; 8 Bac. Ab., “““ scire facias,” 598; Denyre vs. Hann, 13 Iowa, 240.

The judgment rendered in 1860 and entered in the name of Dowdall & Co., is amendable by adding the name of Dowdall's co-plaintiffs as stated in the petition and writ. Judgment may be awarded in affirmance of this by adding names of parties. (W. S. 1034, § 6; also 10th, 13th and 14th clauses § 19 and § 20 W. S. 1036-37.) And our statute of amendments extends to writs of scire facias. (1 Tidd P., 713,4th Amer. Ed.; Brittin vs. Wilder, 6 Hill, 242.)

The question of error or irregularity never can be discussed collaterally in another suit. It is not in issue in this action of ejectment. We are only to look to the judgment and cannot question its regularity. (Jackson vs. Robins, 16 Johns, 537, 575; Jackson vs. Bartlett, 8 Johns., 361; Stark vs. Gildart, 4 How. (Miss.,) 267; Van Campen vs. Snyder, 3 How. (Miss.,) 66; Winston vs. Affalter, 49 Mo., 263.)

In Durham vs. Heaton, (28 Ills., 264,) the court held, that where by the testimony of the keeper of the record there was no other judgment but the one in question on which the execution issued, though there was a variance in amount and names of parties to the judgment, the identity of the judgment was established. (See page 272.)

Hardin & Ellis, for Respondent.

The judgment could only be revived identically as rendered. (Humphreys vs. Lundy, 37 Mo., 320.) The petition for, and the issuing of, the writ of scire facias, are proceedings in the original action, must be to the same cause and between the same parties.

The writ of scire facias must pursue the original judgment. (Bacon's Ab. Title, “ scire facias.”)

SHERWOOD, Judge, delivered the opinion of the court.

This was an action of ejectment brought in the Greene Circuit Court by John P. Ellis, against Henderson Jones. At the trial the plaintiff showed a chain of title, for the land in controversy, from the United States & mesne conveyance to M. E. Langston, and by said Langston to Harvey H. Neaves by deed dated February 7th, 1859, and from said H. H. Neaves to Thos. G. Neaves by deed dated December 18th, 1860. And the plaintiff to show that he had acquired the title aforesaid, read in evidence a deed made by Elisha Headlee, Pub. Admr. of Greene County, to plaintiff, dated February 18th, 1868, wherein it is recited that said Headlee, as Admr., of the estate of Thos. J. Neaves, deceased, was on the 23d day of August 1867, by the Probate and Common Pleas Court of Greene county, at its August term for that year, “ordered by an entry of record” to “sell under an alias order of sale, at public sale, to the highest bidder for cash” the above described land to pay the debts of said estate, that the land was appraised at $1600 and sold to plaintiff at the sum of $50; that This sale was approved by said court at the next term thereafter, etc., etc.

After the introduction of some testimony as to rents and profits, plaintiff rested.

The defendant then, to show an outstanding title in said land to T. R. Dodson, read in evidence a deed from the sheriff of Greene County to said Dodson, reciting a judgment rendered in the Probate and Common Pleas court aforesaid, on the 4th day of June 1860, in favor of John T. Dowdall, and against Henderson Jones, Iridell Jones and Harvey H. Neaves for $695.90, the filing of a petition on the 13th day of March 1865, in said court, to revive said judgment, and to continue the lien of the same in force on the following real estate etc., (describing the land in controversy), a judgment dated December the 19th, 1865, in said court, reviving said lien and ordering the lien to be enforced against the land aforesaid, the issuance of an execution on the judgment on the 13th day of February 1866, and the sale of the land in question on the 22d day of May, 1866, to Thos. R. Dodson for $1,182.34. This deed was filed for record on the 31st of the last mentioned month and year, and duly recorded. Defendant then rested.

The plaintiff then endeavored to show that the judgment revivor aforesaid was void, and that there was no such original judgment as that of John T. Dowdall against H. Jones, Iredell Jones and Harvey H. Neaves, and introduced in evidence the records of said case as the same appeared on the records of the Probate and Common Pleas Court, and also, the file of pleadings in said cause. The petition therein showed the suit to be brought in the names of John T. Dowdall, James B. Dean, Henry Wiggenbone and Theodore V. Taylor, against Iredell Jones, Henderson Jones and Harvey H. Neaves on a promissory note; and the record showed that defendants filed their answer, entitling the same as above, and subsequent entries in the record show that the cause afterwards proceeds in the name of “John T. Dowdall & Co., and John T. Dowdal et al. through all the various continuances, orders, etc., until it finally results in a judgment in favor of John T. Dowdall & Co., against Iredell Jones, Harvey H. Neaves and Henderson Jones” on the same date (the 4th of June 1860,) and for the same amount as specified in the sheriff's deed aforesaid, to Thos. R. Dodson. And the record further shows that at the May term 1865, of the said court, in the case of John T. Dowdall against Henderson Jones, Iredell Jones and Harvey H. Neaves, the writ of scire facias previously issued in the cause not having been served on the terre-tenants of Harvey H. Neaves, an alias was awarded in the name of John T. Dowdall, against said Jones & Jones and Neaves, reciting the fact of judgment rendered etc., as recited in the Sheriff's deed to Dodson on which defendant relied, and commanding the Sheriff to summon said Jones & Jones and Neaves, and all parties occupying the land in controversy to be and appear, etc. This writ was returned served as to Henderson Jones, and non est as to Iredell Jones and Harvey H. Neaves, whereupon an order of publication was made citing them to appear at the November term 1865 of said court, and show cause, etc., or the judgment aforesaid and the lien thereof would be renewed and continued in force “against the land aforesaid, and against the other property of said defendants.” This publication conforms in all respects as to names, dates, amounts, &c., to the writ of scire facias in its various recitals. At the November term aforesaid, a judgment of revivor was had conforming in all respects as to names of parties, dates, amount, &c., to the scire facias and publication, and reciting the fact of the appearance of Henderson Jones by attorney, and the service on the other defendants by publication, as above stated, and reviving for two years the lien of a judgment in favor of John T. Dowdall and against Henderson Jones, Iredell Jones and Harvey H. Neaves, rendered on the 4th day of June, 1860, and corresponding in all respects to the original judgment, except that the words “““& Co.” are not affixed to plaintiff's name, and against the land in controversy. This judgment of revivor also recites, that the petition for the issuance of the writ of scire facias was filed on the 13th day of March, 1865, and awards execution against the property in question. Among the papers on file in said cause, there is a petition for revivor of said judgment, filed December 9th, 1865, (but whether in vacation or term time does not appear) sworn to before the judge of the court and filed to supply, nunc pro tunc, a petition alleged to have been filed in that behalf on the 13th day of March, 1865. The execution awarded in conformity to the judgment of revivor pursues the original judgment, except that the words “& Co.” are not annexed to John T. Dowdall's name. And the return on the writ of execution shows that the property in controversy was sold to Dodson, as recited in the Sheriff's deed. The plaintiff then proved that the case of John T. Dowdall vs. H. Jones, I. Jones and H. H. Neaves, was not docketed in the docket of the Probate and Common Pleas Courts at the May and November terms, 1865, and that no other original judgment was rendered by said court, in which John T. Dowdall was plaintiff or co-plaintiff, other than the above judgment of John T. Dowdall & Co., plaintiffs vs. H. Jones, I. Jones and H. H. Neaves. This was all the evidence.

The plaintiff then asked the court to declare the law to the effect:

That where a judgment is rendered for John T. Dowdall & Co., and the petition and process are in favor of John T Dowdall and three other plaintiffs, who are named, the judgment is void.

That all the proceedings to revive the judgment aforesaid were void, &c., &c. The court thus declared the law and defendant excepted.

The defendant then asked declarations of law to the effect: That the proceedings aforesaid were not void; that the title acquired by T. R. Dodson under these proceedings was valid and would defeat plaintiff's action; that if there were any errors or irregularities either in the original judgment or in the proceedings to revive the same, they were not fatal, and could only be taken advantage of in a direct proceeding for that purpose, and could not be made the basis of collateral attack; that if the Probate and Common Pleas Court acquired jurisdiction over the subject matter, and over the persons of defendants, the original judgment was not void; that if the lien of the original judgment, in favor of John T. Dowdall vs. Jones & Jones and Neaves, was kept alive by proceedings duly instituted on the 13th day of March, 1865, by petition filed for that purpose, and due notice of such intended revival given to defendants, and a judgment of revival...