Hickox v. McKinley, 24613.

• Court: United States State Supreme Court of Missouri
• Writing for the Court: Seddon
• Citation: 278 S.W. 671
• Parties: HICKOX v. McKINLEY et al.
• Docket Number: No. 24613.,24613.
• Decision Date: 22 December 1925

278 S.W. 671

HICKOX v. McKINLEY et al.

No. 24613.

Supreme Court of Missouri, Division No. 1.

December 22, 1925.

Appeal from St. Louis Circuit Court; M. Hartmann, Judge.

Application by Lee Hickox for a writ of scire facias against Robert E. McKinley and others to revive a judgment. From an order granting the writ, defendants appeal. Reversed and remanded.

Arthur E. Simpson, of St. Louis, for appellants.

S. T. G. Smith and Gustave A. Stamm, both of St. Louis, for respondent.

SEDDON, C.

Appeal from a judgment of the circuit court of the city of St. Louis, rendered December 11, 1922, reviving a judgment against appellants rendered in said court on April 12, 1915. Application by respondent for a writ of scire facias to revive said original judgment was filed on March 29, 1918. A writ of scire facias was issued on April 1, 1918, directed to appellants Robert E. McKinley and Samuel J. McKinley and one Julius H. Brinkmeyer, a defendant in the original action, returnable to the June, 1918, term of said circuit court. On October 25, 1918, respondent filed an amended application, making the appellant Charles F. McKinley a party, and on October 28, 1918, a writ of scire facias was issued to said Charles F. McKinley, returnable to the December, 1918, term of said court.

The original judgment of April 12, 1915, was rendered in an action brought by respondent herein, Lee Hickox, as plaintiff, against appellants herein, Robert E. McKinley, Samuel J. McKinley, and Charles F. McKinley and said Julius H. Brinkmeyer, as defendants, upon a promissory note executed by said defendants and delivered to the respondent herein, Lee Hickox. Said original judgment recites:

"That the defendants are indebted to the plaintiff on account of the instrument of writing upon which this action is founded, and which is secured by a pledge, as collateral, of certificates of 1,230¾ shares of the capital stock of the Borden Varnish Company, hereinafter mentioned, in the sum of $3,600, together with interest thereon at the rate of 7 per cent. per annum from March 29, 1914, until this date, said interest amounting to the sum of $262.50, together with the sum of $200 attorney's fees for collection of said note, making the aggregate indebtedness at this time the sum of $4,062.50; and the court doth further find that said indebtedness, together with interest thereon, is secured by a pledge of 1,-230¾ shares of the capital stock of the Borden Varnish Company, a Missouri corporation, each of said shares having a par value of $10, the said certificates of stock having been delivered by defendants to the plaintiff at the time or the execution and delivery of the note sued on; and the court doth further find that the said indebtedness, together with interest thereon and costs of this suit, are and constitute a valid and subsisting lien upon the said certificate's of stock.

"It is therefore considered, adjudged, and decreed that the defendants be foreclosed of all interest, right, and equity of redemption in the certificates of stock aforesaid, and that the plaintiff have and recover of said defendants the sum of $4,062.50, together with interest thereon from this date at the rate of 7 per cent. per annum and the costs of this proceeding, to be levied of the shares of stock hereinbefore described.

"It is further ordered and adjudged that, if said shares of stock be not sufficient to satisfy said indebtedness, together with interest and costs, then that the remainder thereof shall be levied of the other goods, chattels, lands, and tenements of said defendants.

"It is further ordered by the court that an execution issue according to law out of the clerk's office, directed to the sheriff of the city of St. Louis, commanding him to sell, at the east front door of the courthouse in the city of St. Louis, according to law, the said shares of stock above described for the purpose of paying the indebtedness and costs aforesaid, directing him to levy out of the other goods, chattels, lands and tenements of said defendants, any residue of said debt that may remain unpaid after the application thereto of the proceeds derived from the sale of the personal property above mentioned."

The appellants herein, in due time, filed their respective answers or returns to the writs of scire facias issued to revive the original judgment, alleging, as a defense thereto:

"That said judgment has been wholly discharged, extinguished, and paid, in that in said judgment it was decreed and adjudged that the indebteness on account of which said judgment was rendered was secured by a pledge of 1,238¾ shares of the capital stock of the Borden Varnish Company, a Missouri corporation, each share having a par value of $10, the certificates of stock having been delivered by the defendants to the plaintiff at the time of the execution of the note on account of which this suit was brought, and that said indebtedness, together with the interest thereon and the costs of this suit, were and constituted a valid and subsisting lien upon said certificates of stock, and that defendants were, by said judgment, foreclosed of all interest, right, and equity of redemption in the certificates of stock aforesaid, and that said judgment be levied out of said shares of stock; that, disregarding said judgment, the plaintiff failed to levy the said judgment out of said shares of stock, although said shares of stock were at the time worth far more than the amount of such judgment, with interest and costs, and that the said plaintiff retained and converted said stock to his own use as a discharge and extinguishment and payment of said judgment."

The respondent thereupon demurred to the answers of appellants on the ground that the facts set up therein are not sufficient to constitute a defense to said writs of scire facias, and that said facts do not constitute a discharge or satisfaction of said original judgment. The circuit court sustained the demurrers to the answers, and, the defendants declining to plead farther, the original judgment was revived on March 20, 1919, and the defendants prosecuted an appeal to the St. Louis Court of Appeals. Thereafter, on January 8, 1920, Julius Brinkmeyer paid $1,500 on said judgment, and plaintiff acknowledged satisfaction of said judgment as to said defendant only. On December 6, 1921, the St. Louis Court of Appeals filed an opinion, reversing the judgment of revival nisi and remanding the cause for a retrial. The St. Louis Court of Appeals held that the defendants' answers, alleging that the original judgment had been discharged, extinguished, and paid by reason of plaintiff's failure to obey the command of the judgment and foreclose the pledged shares of stock, pleaded a legal defense to the writs of scire facias. In its opinion (Hickox v. McKinley, 236 S. W. 1068, 1070), that court said:

"It is then alleged that plaintiff failed to levy on said shares as directed by said judgment, although at the time they were worth more than the amount of said judgment; and, further, that plaintiff retained and converted said stock to his own use as a payment and discharge of the judgment. Should these facts be established by competent evidence, we think they are sufficient to constitute a satisfaction of the judgment. A judgment may be satisfied otherwise than by the payment of money, and if plaintiff had such a special judgment as is alleged by defendants and was obliged to first attempt to satisfy same out of the shares of stock on which it was a lien, and chose not to do so, but to take the stock as a satisfaction, we see no reason why such should not be held to be a payment and release of the judgment. Of course, if it appeared that at the time the shares were worthless, and that a levy thereon would be a useless and idle ceremony, then it may well be said that plaintiff was not required to levy on the shares. But here defendants allege that the shares at the time were worth more than the amount of the judgment."

After the remanding of the cause to the circuit court, the respondent filed a reply to the answers of appellants, alleging that the shares of stock of the Borden Varnish Company, referred to in said answers, were, at the time of the original judgment, and at all times since the date of said judgment, absolutely worthless and of no value, and that a levy thereon would have been useless and of no avail. At the beginning of the trial of this issue raised by the pleadings, and before the introduction of any evidence thereon, the appellants demanded a trial of the issue by a jury, and objected to a trial by the court without a jury. The trial court denied appellants' demand for a jury trial and overruled their objections to a trial of the issue by the court without a jury, exceptions to which rulings were duly saved by appellants.

Respondent thereupon offered evidence tending to show that the shares of stock of the Borden Varnish Company were valueless and worthless at the date of the original judgment and at all times subsequent thereto. Appellants, on the other hand, offered evidence tending to show that the shares of stock had, at said times, some substantial value. Appellants, at the close of the trial, requested the trial court to state in writing the conclusions of fact found separately from the conclusions of law. In the written conclusions of fact, the trial court found that no execution was issued upon the original judgment, and that respondent did not levy upon said shares of stock of the Borden Varnish Company as directed by the original judgment, but that said shares of stock were worthless at the time of the rendition of the original judgment on April 12, 1915, and continuously from that date. The court's conclusion of law was to the effect that, having found as a matter of fact that said shares of stock were, at said times, worthless and without value, there is no amount which appellants can have credited on said judgment. Judgment of revival...