Eubank v. Eubank, 16955.

• Citation: 29 S.W.2d 212
• Decision Date: 16 June 1930
• Docket Number: No. 16955.,16955.
• Parties: EUBANK v. EUBANK.
• Court: Court of Appeal of Missouri (US)

29 S.W.2d 212

EUBANK v. EUBANK.

No. 16955.

Kansas City Court of Appeals. Missouri.

June 16, 1930.

Appeal from Circuit Court, Jackson County; D. A. Brown, Judge.

"Not to be officially published."

Divorce action by Mary A. Eubank against Jerome D. Eubank, wherein court granted decree of divorce in favor of plaintiff and judgment for alimony. Execution was issued about fourteen years after entry of judgment, and, from an order overruling defendant's motion to quash the execution, defendant appeals.

Reversed and remanded, with directions.

Charles A. McNeese and Ernest D. Martin, both of Kansas City, for appellant.

Garrett & Ruark, of Kansas City, for respondent.

ARNOLD, J.

This is an appeal from an order of the trial court overruling defendant's motion to quash an execution.

The pertinent facts are that on December 22, 1915, the circuit court of Jackson county, Mo., granted its decree of divorce in favor of plaintiff and judgment for alimony in the sum of $30 per month. On December 9, 1916, on application of defendant, the court modified its judgment reducing the alimony to $15 per month, and on April 20, 1918, the court again modified the decree, making the payments of $15 per month effective from date of the original judgment, to wit, December 22, 1915.

The record discloses that, at the date of the decree of divorce and judgment for alimony, plaintiff and defendant were joint owners as tenants in common of a life estate in certain real estate described as lot 8 of James T. Robinson's First addition to Kansas City, Mo., and numbered 3333 Montgall avenue in said city. On December 28, 1915, by warranty deed, defendant conveyed his record title to said property to one Ida Jane Cotton, a relative, reciting therein that the interest being so conveyed was his one-half interest therein, the other half being owned by Mary A. Eubank, his former wife.

Plaintiff placed the property in the hands of a rental agent, Edgar A. Lowry, who managed it, collected the rents thereon from 1915 to 1923 or 1924, and turned the proceeds over to plaintiff. Thereafter, through plaintiff, the management of the property passed into the hands of M. W. Major, president of the Major Rental Agency, who testified for plaintiff that, while the property was in his hands, he had collected approximately $1,217.50; that, after the payment of taxes, commissions, and expenses, he paid the balance to C. H. Charlton, brother of plaintiff.

Charlton testified that he turned this money over to plaintiff, for whom he was acting as agent. This witness also testified that, about 1924 or 1925, defendant called him (presumably over the telephone) and wanted to know about his part of the rent; and that defendant also talked with the wife of witness about the matter. The testimony shows that Ida Jane Cotton never made any claim of ownership of the property, nor any claim for the rent. Witness M. W. Major testified that never at any time did he have a conversation with defendant concerning the property, but that in the early part of February, 1929, Ernest Eubank, brother of defendant, called on him and told him that he had personally served notice on the tenants of the property to withhold payment of the rent, and that he was acting for his brother, the defendant herein; that the date of the last payment he made to Charlton was February 2, 1929, and the amount was $30.50.

The evidence shows the rentals from the property were paid to plaintiff from time to time, after the judgment for alimony, up to and including February, 1929. There were no credits entered upon the judgment until on or about October 7, 1929, when Mr. Ruark of plaintiff's counsel made the following entry on the record of one of the orders modifying the original judgment, as follows: "Payment of $15 per month made from January 1-16 up to and including the month of December, 1922; signed Mary Eubank by Garrett & Ruark, her attorneys." The record discloses that defendant at no time authorized payment of the rental proceeds from the property to plaintiff, nor did he authorize any one to collect the rentals thereof. On October 7, 1929, execution was issued in the cause on the original judgment, and on October 14, 1929, defendant filed a motion to quash the execution. This motion was overruled on October 18, 1929. Later defendant filed his second motion to quash, which was also overruled, on October 24, 1929. Defendant then filed his motion for new trial, which was overruled, and he has brought the case here by appeal. The first motion to quash was verified by Ernest L. Eubank, as agent and representative of defendant, and the second was verified by defendant in person.

The assignments of error are (1) that the judgment and rulings of the trial court are against the law and the evidence; (2) that the court erred in admitting incompetent and irrelevant evidence over objections of defendant; (3) in holding the credit of October 7, 1929, tolled the statute of limitations; (4) in holding the judgment of December 22, 1915, was not barred by the statute of limitations, and (5) the court should have held as a matter of law that all voluntary credits or payments attempted to be entered by the attorney for plaintiff, on the margin of one of the modification orders of the circuit court records, at a time when said judgment was nearly fourteen years old, indorsed thereon without the knowledge or consent of the payor, who had never made a payment of any kind, nor authorized any such to be made for him, without any suit or revival of said judgment, were improper and wrongful, could not put new life into said judgment, and could not toll the statute of limitations, since said judgment was presumed to have been paid and fully satisfied.

As we read the record and briefs there is but one point raised which is determinative of this appeal; and that is whether or not the payments made in the manner in which they were, and credited on the judgment, tolled the statute of limitations.

There is no dispute that the credits were made after ten years from date of the judgment, and it is not disputed that there was no revivor thereof. This being true, the only way in which the statute may be tolled is by payment on the judgment by the debtor, and in such case the statute...