Glidden-Felt Mfg. Co. v. Robinson

• Decision Date: 06 February 1912
• Citation: 143 S.W. 1111
• Parties: GLIDDEN-FELT MFG. CO. v. ROBINSON.
• Court: Missouri Court of Appeals

143 S.W. 1111

GLIDDEN-FELT MFG. CO. v. ROBINSON.

St. Louis Court of Appeals. Missouri.

February 6, 1912.

1. JUDGMENT (§ 870)—REVIVAL—SCIRE FACIAS —PLEADING.

The plea to a writ of scire facias, sued out to revive a judgment, is to the writ, and not to the petition therefor.

2. JUDGMENT (§ 870)—REVIVAL—SCIRE FACIAS.

The writ of scire facias, sued out to revive a judgment, being a judicial writ, must follow the judgment, and at common law, if the judgment be joint against two or more, must be against all of the defendants or their representatives, unless they be beyond the jurisdiction, dead, or discharged from further liability.

3. JUDGMENT (§ 870)—REVIVAL—SCIRE FACIAS.

A proceeding by scire facias to revive a judgment is only a continuance of the former suit, and not the institution of a new suit.

4. JUDGMENT (§ 870)—REVIVAL—SCIRE FACIAS —PROCEEDINGS—DEFENSE.

Defendant in scire facias to revive a judgment cannot plead any matter which he might have pleaded in the original action in which the judgment was acquired; and hence in such proceedings by a corporation defendant cannot claim that plaintiff was not a corporation, or one authorized to do business within the state, so as to be entitled to sue.

5. JUDGMENT (§ 495)—PRESUMPTIONS TO SUPPORT.

It is conclusively presumed on collateral attack, in support of a judgment of the circuit court in favor of a purported corporation as plaintiff, that it was a corporation entitled to maintain the action.

6. JUDGMENT (§ 870)—SCIRE FACIAS— AMENDMENT.

That plaintiff corporation, after suing out scire facias to revive a judgment in its favor, supposed that its corporate name had been legally changed, and accordingly changed the name of the corporation instituting the proceeding, did not effect a discontinuance thereof, and was not prejudicial to defendant, not having misled him.

Appeal from Circuit Court, Pike County; David H. Eby, Judge.

Action by the Glidden-Felt Manufacturing Company against Charles L. Robinson. From a judgment for plaintiff, defendant appeals. Affirmed.

J. D. Hostetter, for appellant. Tapley & Fitzgerrell, for respondent.

REYNOLDS, P. J.

On the 10th of December, 1897, the Glidden-Felt Manufacturing Company, a corporation, recovered a judgment in the circuit court of Pike county, this state, against Charles L. Robinson, James D. Kincaid, C. Jeter Robinson and Warren G. Robinson, in the sum of $782, on account of two promissory notes. One Daniel Pendergast appears to have been a co-defendant, but it is recited in the judgment that the cause had been dismissed as to him. Afterwards, on the 3rd of December, 1907, the plaintiff, Glidden-Felt Manufacturing Company, filed a petition in that court in which it prayed for the issue of a scire facias against the three Robinsons, Kincaid and Pendergast. On that day scire facias issued, directed to the sheriff of the city of St. Louis against C. Jeter Robinson, in and by which he was ordered to appear before the circuit court of Pike county at the next term thereof and show cause, if any, why the judgment should not be revived against him. This was duly served on him and he appeared and filed his return to the scire facias, designating it, however, as an answer to the petition and writ. In this return or answer Robinson avers that he was never served with process in the suit referred to, had never entered his appearance in the cause, and that the Pike county circuit court had never acquired any jurisdiction over him. As a further answer he set up that there was then pending and undetermined in the circuit court of the city of St. Louis, a suit instituted by plaintiff against him and another on the same judgment, in and by which said action plaintiff seeks to obtain a new judgment against the defendant and another. (This plea was stricken out on motion.) Robinson also pleads the statute of limitations in bar, claiming that more than ten years have elapsed from the date of the rendition of the judgment before any proceedings were begun against him. As a further return or defense Robinson sets up that on the 31st of August, 1908, Charles L. Robinson, one of the defendants in the original cause, had paid the sum of $500 on the judgment, in release and discharge of said Charles L. Robinson from all liability on the judgment, and that in July, 1909, Warren G. Robinson, another of the defendants had paid on the judgment the sum of $300, under an agreement releasing and discharging him from further liability on the judgment. The defendant C. Jeter Robinson pleads that the acceptance of these payments operated as a release and discharge and satisfaction of the judgment in toto and released and discharged all other parties to the judgment from liability thereon. As another defense C. Jeter Robinson pleads that the judgment had been liquidated, paid off and discharged. As further defense he avers that neither the Glidden-Felt Manufacturing Company nor Francis T. Simmons & Co. (a corporation), had complied with the statutes of the state of Missouri authorizing foreign, nonresident corporations to do business in this state or to sue in this state, or that they are corporations. It is further averred that on the 15th of June, 1909, this cause was abandoned by the Glidden-Felt Manufacturing Company, as plaintiff, and an amended petition filed in the case making Francis T. Simmons & Co., a corporation, the plaintiff in place of the Glidden-Felt Manufacturing Company, the amended petition by which this was done being filed by leave of court; that afterwards the cause was heard by the court, Francis T. Simmons & Co., appearing as sole plaintiff, and was submitted to the court; that afterwards the court filed written findings of fact and conclusions of law setting aside the submission, to which action Francis T. Simmons & Co., filed a motion for new trial and in arrest of judgment, but dismissing the cause as to the defendants Kincaid and Pendergast; that afterwards this motion for a new trial was overruled and leave was given to Francis T. Simmons & Co., to withdraw the paper filed by that company on June 15, 1909; that on that day Francis T. Simmons & Co., dismissed the action as to the defendants Warren G. and Charles L. Robinson, and by leave of court was granted until February 1, 1910, to plead to the answer and return of C. Jeter Robinson. It is averred that these proceedings had at the June and October terms, 1909, of the court, amounted to an abandonment of the case by the Glidden-Felt Manufacturing Company, and that there has been no revival of the cause by leave of court, so as to make the Glidden-Felt Manufacturing Company a party to the suit, and that on the filing of the amended petition on June 15, 1909, in the name of the plaintiff Francis T. Simmons & Co., the Glidden-Felt Manufacturing Company ceased to be a party plaintiff to the action. On this state of facts defendant pleads the ten-year bar of the statute of limitations both as against Francis T. Simmons & Co., and the Glidden-Felt Manufacturing Company. This answer was verified by C. Jeter Robinson, who had become the sole defendant. A general denial was filed to this by way of reply.

The court thereupon proceeded to hear the case, a jury having been waived, plaintiff requesting a written finding of fact. The court took the cause under advisement and afterwards making its finding of fact and conclusions of law, entered judgment in favor of plaintiff reviving the judgment as against the defendant C. Jeter Robinson for the full amount of the judgment and interest, giving credit, however, on the judgment, for the two payments of $500 and $300, respectively, set up in the answer or return as having been made by Charles L. Robinson and Warren G. Robinson, respectively. From this judgment the defendant C. Jeter Robinson duly perfected his appeal to this court.

It appears that James D. Kincaid, one of the parties defendant in the original judgment had died before the...