Hammett v. Hatton

• Decision Date: 24 May 1915
• Citation: 176 S.W. 1078,189 Mo.App. 567
• Parties: DR. J. D. HAMMETT, Appellant, v. DR. O. F. HATTON, Respondent
• Court: Kansas Court of Appeals

176 S.W. 1078

189 Mo.App. 567

DR. J. D. HAMMETT, Appellant, v. DR. O. F. HATTON, Respondent

Court of Appeals of Missouri, Kansas City

May 24, 1915

Appeal from Randolph Circuit Court.--Hon. A. H. Waller, Judge.

REVERSED.

Judgment reversed.

A. R Hammett and B. E. Cowherd for appellant.

Hamilton & Hizer for respondent.

OPINION

JOHNSON, J.

On August 4, 1913, plaintiff brought suit against defendant before a justice of the peace of Randolph county upon a judgment alleged to have been rendered against defendant and in favor of plaintiff by another justice of the peace in that county on November 16, 1894. Summons was duly issued and served on defendant who failed to appear and judgment was rendered against him on the return day of the summons. The judgment recited:

"The justice finds from the docket of A. H. Beschor, a former justice of the peace of Randolph county, Missouri, that plaintiff obtained a judgment against the defendant on the 16th day of November, 1894, before said A. H. Beschor, while justice as aforesaid, for the sum of one hundred and 75-100 dollars, with costs taxed at $ 4.50, and is satisfied from the said docket, and from the evidence produced by the plaintiff that no part of the aforesaid judgment, interest or costs, has been paid to the plaintiff. The justice doth therefore adjudge that plaintiff have and recover of the defendant the full amount of said judgment, with interest and costs thereon, from the date thereof, found upon computation to be $ 218.60, together with his costs expended in this suit taxed at $ 3 for the justice and $ 1.10 for the constable."

A transcript of this judgment was issued and filed in the office of the circuit clerk and forthwith was entered on the judgment docket. Execution was issued by the clerk and levied by the sheriff upon certain real estate of defendant. Afterward defendant filed in the circuit court a motion to quash the execution and levy, on the ground that "there is no valid judgment upon which the execution was issued and the levy and advertisement thereunder made can be based and that the said execution was issued without authority of law and is irregular and void." The court heard this motion sustained it, and rendered judgment quashing the execution. Plaintiff appealed.

It appears from the evidence heard on the motion to quash that the judgment pleaded as the foundation of plaintiff's cause of action was not rendered on November 16, 1894, as alleged in the petition, but on November 16 1895, and that on January 9, 1902, this judgment was merged into a judgment recovered thereon by plaintiff against defendant in the circuit court of Randolph county. No payment on the latter judgment ever was entered of record and defendant contends that under section 1912, Revised Statutes 1909, it became barred by limitations January 9, 1912. This statute, which was enacted in 1895, before the rendition of the original judgment, provides that every judgment of any court of record shall be presumed to be paid and satisfied after the expiration of ten years from the date of its rendition or from the date of the last payment on such judgment entered upon the record thereof, "and no execution . . . shall issue thereon, nor shall any suit be brought, had or maintained thereon for any purpose whatever."

If this were a direct proceeding in which defendant had attacked the judgment sued upon on the ground that it had become merged into the judgment subsequently rendered in the circuit court and that the latter judgment under section 1912, Revised Statutes 1909, is conclusively presumed to have been paid, we would hold such affirmative defense to be well grounded in law and fact. But the difficulty of defendant's position lies in the fact that he has chosen to attack the last judgment rendered against him in the justice court in a collateral, instead of a direct proceeding. It is correctly said in 1 Black on Judgments (2 Ed.), sec. 253, that the validity of a judgment cannot be impeached on a motion to quash an execution issued on it. Such a motion...