Excelsior Steel Furnace Co. v. Smith

• Decision Date: 20 May 1929
• Docket Number: 16656
• Citation: 17 S.W.2d 378
• Parties: EXCELSIOR STEEL FURNACE CO. v. SMITH et al.
• Court: Kansas Court of Appeals

17 S.W.2d 378

EXCELSIOR STEEL FURNACE CO. v. SMITH et al.

No. 16656

Court of Appeals of Missouri, Kansas City

May 20, 1929

Appeal from Circuit Court, Jackson County; Allen C. Southern, Judge.

Action by the Excelsior Steel Furnace Company against Day K. Smith and another. Judgment for plaintiff, and defendants appeal. Affirmed.

Grover & Graves, of Kansas City, for appellants.

Davis & Davis, of Kansas City, for respondent.

OPINION

BARNETT, C.

This is a suit upon a judgment. On the 22d day of May, 1928, a petition was filed in which it was alleged that plaintiff had obtained a judgment against the defendant in the circuit court of Jackson county, Mo., which judgment was rendered on the 31st day of May, 1918. It was alleged that no part of the judgment, either principal, interest, or costs, had been paid, and the prayer was for the amount of the judgment including costs and interest at the rate of 6 per cent. per annum from the date of the judgment. A certified copy of the judgment was attached to the petition.

On September 5, 1928, defendants filed a demurrer alleging that the petition did not state a cause of action because the plaintiff’s cause of action, if any, accrued more than ten years before the commencement of this suit, and it therefore became barred by the statute of limitations, and because the petition did not allege that a writ of scire facias had been sued out to revive the judgment; that it appeared from the face of the petition that there was a defect as to parties defendant, in that one of the parties to the alleged judgment was not a party defendant in this suit. This demurrer was overruled, and the defendants then filed answer, which was as follows:

"Come now the defendants in the above entitled cause and deny each and every allegation in plaintiff’s petition contained.

And further and by way of answer, defendants state that the judgment sued on by the plaintiff in the aforesaid cause was alleged by plaintiff to have been rendered on the 31st day of May, 1918. That more than ten years have passed since the rendition of said alleged judgment, and that no scire facias is alleged to have been issued or was issued as provided by the statutes of the State of Missouri for the revival of said judgment.

Wherefore, having fully answered, defendants pray to be dismissed with their costs herein incurred."

Plaintiff then filed a motion for judgment on the pleadings, alleging as grounds therefor that the answer pleads only the ten-year statute of limitations, which issue had been raised previously by a demurrer, and that the demurrer had been overruled by the court. The court sustained this motion and rendered judgment on the pleadings for the plaintiff. Motions for new trial and in arrest were filed and overruled, a bill of exceptions was settled and filed, which preserved the motion for judgment on the pleadings and the defendants’ exceptions to the ruling of the court, and defendants appealed.

Opinion.

Defendants are mistaken in supposing that the only way in which a judgment may be saved from the destructive effect of the statutes of limitations is by revival on scire facias. Section 1557, R. S. 1919, provides that the plaintiff or his legal representatives 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 after the rendition of the judgment, no scire facias shall issue. Section 1564, R. S. 1919, provides that an execution may issue upon a judgment at any time within ten years after the rendition of such judgment. Section 1341, R. S. 1919, provides that every judgment 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, then after ten years from and after such revival, or, in case a payment has been made upon the judgment and duly entered upon the record thereof, after the expiration of ten years from the last payment so made; and, after the expiration of ten years from the original rendition or revival or from the date of the last payment, no execution, order, or process shall issue thereon, nor shall any suit be brought thereon. The latter statute recognizes the right to bring a suit upon a judgment as it existed at common law. To hold that the sections which provide for a revival of the judgment by scire facias provide the only method by which the rights under a judgment may be saved from the effects of the statutes of limitations would be to hold that section 1341, R. S. 1919, serves no purpose whatsoever. At common law a suit might be brought upon a judgment, and such actions have received full sanction in the state of Missouri. Davis v. Carp, 258 Mo. 686, 167 S.W. 1042; Chenault v. Yates (Mo. App.) 216 S.W. 817; Bick v. Vaughn, 140 Mo.App. 595, 120 S.W. 618; Houck v. Swartz, 25 Mo.App. 17; Sheehan & Loler Co. v. Sims, 28 Mo.App. 64; Parry v. Walser, 57 Mo. 169; Wood v. Newberry, 48 Mo. 322.

In some states a suit on a judgment is not permitted in the absence of some showing that the second judgment will be more efficacious than the first. There must be some reason why the second suit should be maintained; otherwise the court will not permit the defendant to be repeatedly harassed and repeatedly subjected to taxation of costs. In the cases of Houck v. Swartz, Parry v. Walser, and Wood v. Newberry, it was stated that there was good reason why the second action should be maintained, thus intimating that the limitation exists in Missouri. Whether the limitation exists or not,...