Goddard v. Delaney

• Decision Date: 11 May 1904
• Citation: 80 S.W. 886,181 Mo. 564
• Parties: GODDARD v. DELANEY et al.
• Court: Missouri Supreme Court

80 S.W. 886

181 Mo. 564

GODDARD v. DELANEY et al.

Supreme Court of Missouri.

May 11, 1904.

JUDGMENTS — REVIVAL — SCIRE FACIAS—TIME OF ISSUANCE — ASSIGNMENT—RIGHTS OF ASSIGNEES—LEAVE TO SUE—COURTS—DIVISIONS —ASSIGNMENT OF CAUSES.

1. Rev. St. 1889, § 6013, provided that the plaintiff, or his legal representative, at any time within 10 years, might sue out a scire facias to revive a judgment and lien, but after the expiration of 10 years from the rendition of the judgment no scire facias could issue. Section 6019 declared that if, on the scire facias, the defendant or any of his creditors did not appear and show cause against the reviving of the judgment, the same should be revived, and the lien continued for another period of 3 years, and so on from time to time as might be necessary. Sections 6011 and 6012 provide that a judgment shall be a lien on real estate, and that such lien shall commence on the date of the rendition of the judgment, and continue for 3 years, subject to be revived as thereafter provided. Section 6020 authorizes the judgment creditor to sue out executions on the judgment at any time within 10 years. Held, that since the effect of section 6020 was to give a judgment full vitality and unrestricted force for a period of 10 years, during which period no scire facias was needed to revive the same, scire facias might issue to revive a judgment at any time within 10 years from the date of its rendition, or that of its last revival, which extended the life of the judgment for a period of 10 years, and the life of the lien for 3 years, after such revival.

2. Rev. St. 1889, § 6043, authorizes the assignment of judgments; section 6044 declares that, notwithstanding the assignment, payment thereof to the original plaintiff shall be valid, unless the defendant is previously notified of the assignment; section 6045 provides that, notwithstanding the assignment, execution shall issue only in the name of the original plaintiff; and section 6046 declares that the assignee may maintain any action on the judgment that the original plaintiff might have maintained. Held, that where the original judgment creditor assigned the judgment, and died prior to the issuance of a writ of scire facias to revive the same by the assignee, such writ could not be maintained in the name of the deceased judgment creditor for the use of the assignee.

3. A writ of scire facias in a proper case may issue as of course out of the circuit court clerk's office, without leave of court first obtained.

4. Though each division of the circuit court of the city of St. Louis has exclusive jurisdiction of cases begun in such court and assigned to such division, after final judgment it was not error for the court to assign the hearing of a writ of scire facias to revive the judgment to a division other than the one by which the judgment was rendered.

Brace, Marshall, and Fox, JJ., dissenting in part.

In Banc. Error to St. Louis Circuit Court; D. D. Fisher, Judge.

Scire facias by Elbridge Goddard, to the use of Sarah L. G. Hyde, against Elizabeth Delaney and others, for the revival of a judgment. From a judgment for petitioner, defendants bring error. Reversed.

T. K. Skinker, for plaintiffs in error. Ashley C. Clover, for defendant in error.

PER CURIAM.

The following opinion in this case in Division No. 1 is adopted as the opinion of the court in banc. ROBINSON, C. J., and BURGESS, GANTT, and VALLIANT, JJ., concur in toto. BRACE and MARSHALL, JJ., concur in paragraphs 1, 3, and 4, and dissent as to paragraph 2. FOX, J., concurs in paragraphs 2, 3, and 4, and dissents as to paragraph 1.

VALLIANT, J.

This cause comes up on writ of error, and presents for review the proceedings of the circuit court in reviving a judgment by scire facias. As there are several assignments of error, we will state the facts separately which bear on each assignment.

1. The original judgment was rendered November 21, 1877, in favor of Elbridge Goddard, plaintiff, against Christiana M. Sloan, Sophia Sloan, and Elizabeth Sloan, defendants, for $2,667.85, bearing interest at 10 per cent. per annum. On August 9, 1887, a scire facias to revive the judgment issued, which was duly served on the defendants therein, and in pursuance thereof, on October 17, 1887, a judgment of revival was rendered and entered in due form. On October 15, 1897, a petition was filed praying for a second scire facias to again revive the judgment against two of the original defendants, Elizabeth Sloan (who then by marriage had become Elizabeth Delaney) and Sophia Sloan; the other defendant, Christiana M. Sloan, having died. Upon the filing of the petition a scire facias issued as prayed, which was duly served on Mrs. Delaney, and returned "Not found" as to Sophia Sloan. Thereupon the court ordered an alias writ for Sophia, which was duly served, and upon its return, both defendants making default, the court on April 8, 1898, rendered judgment of revivor. The judgment at that date, with interest, amounted to $8,105.06. It is to review the action of the court under the second scire facias that this writ of error is prosecuted. Upon the foregoing facts the plaintiffs in error say that the judgment should be reversed, because when the second scire facias issued the original judgment was more than 10 years old.

In support of this assignment the plaintiffs in error rely on section 6013, Rev. St. 1889, which was the law at that time: "The plaintiff or his legal representative 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 from the rendition of the judgment no scire facias shall issue." If that were the only statute on the subject, the proposition of the plaintiffs in error would be unanswerable. But closely following that section, and in pari materia with it, is section 6019: "If upon the service of the scire facias or publication as aforesaid the defendant or any of his creditors do not appear and show cause against reviving the judgment or decree, the same shall be revived and the lien continued for another period of three years, and so on from time to time as often as may be necessary." To understand these two sections, they must be read together, and also in connection with sections 6011 and 6012, which are to the effect that a judgment shall be a lien on the real estate of the defendant in the county in which it was rendered, and "such lien shall commence on the day of the rendition of the judgment and shall continue for three years, subject to be revived as hereinafter provided." Thus we have the statute declaring that the judgment shall be a lien on the defendant's real estate in the county for the term of three years, subject to be revived; that the plaintiff in judgment may have scire facias at any time within ten years, but not after, to revive his judgment and his lien; that upon the return of the scire facias, if cause to the contrary is not shown, the judgment shall be revived, and the lien continued for another period of three years; and that the process may be repeated "from time to time as often as may be necessary."

It is contended on the part of the plaintiffs in error that these statutes, taken together, mean that within the period of 10 years from the rendition of the original judgment the plaintiff may have as many writs of scire facias as he may need to keep the lien of his judgment in force, but beyond that period no such writ can issue. If the only object to be accomplished by the scire facias was the preservation of the lien, there would be much force in that position. But the writ is not limited to that purpose. It is designed to revive the judgment itself and give it a new vitality. In this connection we must read, also, section 6020, which is in pari materia with the other sections, and is: "Executions may issue at any time within 10 years after the rendition of such judgment." This section abrogated the common law on the subject, which limited the period in which an execution might issue on a judgment to a year and a day from the date of its rendition. After that period by the common law the judgment was dormant, and the plaintiff had no remedy but to sue on his judgment and obtain a new one. But that difficulty was remedied by the statute of Westminster II, 13 Edw. I, c. 45, which extended the remedy by scire facias to personal judgments on which execution had not issued for a year and a day. Our statute goes farther than the English statute, and allows a plaintiff to have execution on his judgment without scire facias at any time within 10 years from the date of the rendition of the judgment. It may be noted that section 6020, which says that execution may issue on the judgment any time within 10 years from the rendition thereof, does not say it shall not issue after that period; and in that respect it is different in form of expression from section 6013, which says the plaintiff may sue out a scire facias at any time within 10 years, but that no scire facias shall issue after that period. Yet the effect is the same in both sections, as will appear when applied to the common-law rules which they were designed to change. By the common law the writ of scire facias to revive a judgment could issue at any time within 20 years from the date of the rendition. Therefore, when our statute gave the plaintiff in the judgment a right to the writ, but intended to limit its exercise to a period less than the common law prescribed, it was necessary that express terms to that effect should be used. But section 6020, giving the right to sue out executions on the judgment at any time within 10 years, was an extension of the common-law right, and therefore no words of restriction were necessary, because there was nothing to restrict. The effect of section 6020, therefore, was to give the judgment full vitality and unrestricted force for 10 years. During that period it needed no scire facias...