In re Jackman's Estate

• Citation: 124 S.W.2d 1189
• Decision Date: 08 February 1939
• Docket Number: No. 35585.,35585.
• Parties: In re JACKMAN'S ESTATE. OTTO B. FLINK v. GEORGE H. PARCELL, Administrator of the Estate of MAY B. JACKMAN, Appellant.
• Court: United States State Supreme Court of Missouri

124 S.W.2d 1189

In re JACKMAN'S ESTATE.

OTTO B. FLINK v. GEORGE H. PARCELL, Administrator of the Estate of MAY B. JACKMAN, Appellant.

No. 35585.

Supreme Court of Missouri.

Division One, February 8, 1939.

Appeal from Jackson Circuit Court. — Hon. Ben Terte, Judge.

REVERSED.

Thomas M. Pratt and Harvey E. Hartz for appellant.

(1) The judgment, on which the within claim was based, was rendered in the Circuit Court of Jackson County, on October 16, 1923, in cause No. 173,205. Nothing had at any time been paid on this judgment. A short time before the end of the ten-year period, when this judgment would have been barred, and on September 13, 1933, the plaintiff sued out of the office of the circuit clerk a writ of scire facias to revive this judgment and had same served upon the defendant. This writ recited the fact that the judgment in question had been rendered, that it was claimed that nothing had been paid upon said judgment, and that plaintiff prayed to have said judgment revived, and then commanded the sheriff to summon the defendant before the circuit court at its next term, on the 13th day of November, 1933, to show cause, if any she had, why the judgment should not be revived. This writ was served on defendant on September 13, 1933. The defendant made no appearance or answer to the writ. At the return term of the writ plaintiff also failed to appear and obtain from the court a judgment reviving his judgment. There never was any order or judgment of any kind entered in this original action No. 173205, reviving the original judgment, but the proceedings were abandoned and allowed to lapse. (2) The only method for reviving a judgment in this State is by writ of scire facias. This writ of scire facias is a common-law writ. Our statutes do not define the writ; they adopt the writ as it was at common law, with the few changes made by the Legislature. Sections 1106, 1107, 1108, 1109 and 1112, Revised Statutes 1929, set forth the procedure for reviving such judgment. These sections provide that plaintiff at any time within ten years may sue out a writ of scire facias to revive a judgment and lien; that such writ shall be served upon the defendant and that the matter shall be tried at the return term of the writ unless continued for cause; and if the defendant, although duly served, fails to appear and show cause against reviving the judgment, plaintiff shall have his judgment revived. Sections 1107 and 1108 expressly set forth the status of the judgment lien in relation to other liens or encumbrances if a scire facias is issued and a judgment of revival afterwards rendered. Armstrong v. Crooks, 83 Mo. App. 141. (3) A scire facias to revive a judgment is a judicial writ. It issues out of a court. It is not, and never was, an original writ at common law. The revival of a judgment is a judicial act. It requires the action of the court to revive a judgment. The issuance of the writ of scire facias and its service upon the defendant is merely the beginning of the procedure to revive a judgment and, unless a judgment of revival is thereafter entered by the court, there is no revival of the judgment. 34 C.J. 671. "Scire facias to revive a judgment is a judicial writ authorized by statute at any time within, but not after, ten years from its rendition. R.S. 1909, No. 2126. It is not a new suit but a continuation of the former."

Watson, Ess, Groner, Barnett & Whittaker for respondent.

The judgment in suit is not presumed to be paid, by Section 886, Revised Statutes 1929. The issuance and service of the writ of scire facias tolled the statute. The law does not require that an order of revivor be entered within ten years from the date of the judgment. It only requires that the writ of scire facias be issued and served within that time. If the writ of scire facias is issued and served upon the judgment debtor within ten years from the date of the judgment, the order of revivor may be made at any time thereafter, and in the interim the judgment is only dormant, not dead nor presumed paid, by the statute. The judgment being only nine years, ten months and twenty-seven days old when the writ of scire facias was issued and served, which tolled the statute, the judgment, within the purview of the statute, never became older than nine years, ten months and twenty-seven days. Secs. 886, 1106, R.S. 1929; LaFayette County v. Wonderly, 92 Fed. 316; Goddard v. Delaney, 181 Mo. 575; Wayland v. Kansas City, 321 Mo. 654, 12 S.W. (2d) 438; St. Francis Mill Co. v. Sugg, 169 Mo. 130; Andrews v. Buckbee, 77 Mo. 430.

BRADLEY, C.

We refer to respondent as claimant. September 6, 1935, claimant filed in the Probate Court of Jackson County, at Kansas City, a demand against the estate of May B. Jackman, deceased. October 28, 1935, the probate court, after a hearing on the claim, made an order disallowing it. Appeal was taken to the circuit court and there, upon trial without jury, the claim was allowed. The administrator appealed to the Kansas City Court of Appeals, and that court transferred the cause here because the amount involved, exclusive of costs, exceeded $7500. [See Secs. 1914, 1915, R.S. 1929, Mo. Stat. Ann., secs. 1914, 1915, pp. 2587, 2589.]

October 16, 1923, claimant obtained a judgment in the Circuit Court of Jackson County against May B. Jackman, for $4500, plus costs of $53.90. No payment was ever made upon this judgment. September 13, 1933, nine years, ten months, and twenty-seven days after the date of rendition claimant sued out scire facias to revive the judgment. The return term of the writ was the November Term, which convened November 13, 1933. Personal service was had upon May B. Jackman, the judgment defendant. No further steps were taken to revive, and no order or judgment of revival was ever made. April 25, 1935, May B. Jackman died, and George H. Parcell was appointed administrator of her estate on May 10, 1935. September 6, 1935, a demand, based on the judgment, was exhibited and filed for allowance against her estate. The time elapsed from the rendition of the judgment to the filing of the demand against the estate was eleven years, ten months, and twenty days.

Section 886, Revised Statutes 1929 (Mo. Stat. Ann., sec. 886, p. 1168), is as follows: "Every judgment, order or decree of any court of record of the United States, or of this or any other state, territory or country, 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 therein, then after ten years from and after such revival, or in case a payment has been made on such judgment, order or decree, 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 date of the original rendition or revival upon personal service, or from the date of the last payment, such judgment shall be conclusively presumed to be paid, and no execution, order or process shall issue thereon, nor shall any suit be brought, had or maintained thereon for any purpose whatever."

From 1865 (Gen. Stat. 1865, sec. 31, p. 749) to 1895 (Laws 1895, p. 221) the limitation on a judgment was twenty years. The statute was again changed in 1899 (Laws 1899, p. 300) and has come down without change since 1899.

[1] Claimant contends that the issuing and service of the scire facias, before the lapse of ten years from rendition, gave to the judgment a vitality that operated to make it a valid demand against the estate of the judgment defendant, notwithstanding the lapse of more than ten years since its rendition and before filing in the probate court. If scire facias is issued prior to the expiration of the ten years from the date of rendition, a judgment of revival is valid, though rendered after the expiration of the ten years. [Wayland v. Kansas City et al., 321 Mo. 654, 12 S.W. (2d) 438, l.c. 441.] Claimant says, in effect, that, at the time of filing the demand in the probate court, he could have had a judgment of revival in the circuit court, and that if the judgment at that time had sufficient life to support a judgment of revival, it had sufficient life to constitute a valid claim against the estate. But, assuming, without deciding, that claimant, at the time of filing the demand in the probate court, could have had judgment of revival in the circuit court, notwithstanding his inattention to the scire facias for nearly two years (see 34 C.J., sec. 1449, p. 682), it must not be overlooked that the suing out of the scire facias was not a new proceeding, but was a continuation of the cause in which it was issued (Peak v. Peak et al. (Mo.), 181 S.W. 394, l.c. 395, and cases there cited), while the filing of the demand in the probate court was a new suit. [McFaul v. Haley, 166 Mo. 56, l.c. 68, 65 S.W. 995.]

As appears above, revival of a judgment may be had, if proceedings to revive are commenced within ten years from rendition, even though the order or judgment of revival is subsequent to the lapse of the ten years. A similar rule prevails as to executions. Section 1113, Revised Statutes 1929 (Mo. Stat. Ann., sec. 1113, p. 1404) reads: "Executions may issue upon a judgment at any time within ten years after the rendition of such judgment." However, if execution is issued within the ten years, sale may be had thereunder, notwithstanding the levy and sale are after the expiration of ten years from the date of the judgment. [Wayland v. Kansas City et al., supra.] Section 1113 has remained unchanged since 1865. [See Gen. Stats. 1865, p. 636, sec. 11.]

[2] Claimant cites Ewing v. Taylor, 70 Mo. 394; Tonnies v. McIntyre, 82 Mo. App. 268; Excelsior Steel Furnace Co. v. Smith et al. (Mo. App.), 17 S.W. (2d) 378; and McFaul v. Haley, supra.

Ewing v. Taylor involved a judgment filed for allowance in the probate court. June 10, 1873,...