Kelly v. City of Cape Girardeau
| Decision Date | 24 January 1936 |
| Parties | FRANK KELLY, APPELLANT, v. CITY OF CAPE GIRARDEAU, ED. L. DRUM, FRANK BATCHELOR, PAUL BROOKS AND HARRY COFFMAN, RESPONDENTS |
| Court | Missouri Court of Appeals |
[Copyrighted Material Omitted]
Original Opinion of January 7, 1936, Reported at: 230 Mo.App. 137.
Motion overruled.
ON MOTION FOR REHEARING.
--In our principal opinion herein we have characterized the suit brought by plaintiff as being one in the nature of a contempt proceeding designed to seek the punishment of the individual defendants to the suit upon their further noncompliance with the terms of the original decree adjudicating a nuisance to exist and ordering that it be abated; and we have further held that plaintiff's petition, so construed and considered, was demurrable in that the mandatory provisions of such original decree were so vague and indefinite in respect to what was expected to be done towards abating the nuisance as not to serve as the basis for the bringing of a charge of contempt growing out of any failure on the part of the defendants to have complied with such decree.
Now on motion for rehearing plaintiff reaffirms his position taken on submission of the case that it was in nowise his intention to have the officers of the defendant city punished for contempt; and again he earnestly and vigorously insists that his sole purpose in instituting the present suit founded upon the fact of defendants' noncompliance with the original decree was to avoid any bar of limitation of time arising upon the expiration of a period of ten years from and after the date of the rendition of such decree.
As the basis for the bringing of the present suit, and as evidencing the necessity for it, plaintiff relies upon section 886, Revised Statutes 1929 (Mo. St. Ann., sec. 886, p. 1168), which provides that every judgment, order, or decree of any court of record 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, then after ten years from and after such revival; or in case a payment has been made on such judgment, order, or decree, then after the expiration of ten years from the last payment so made; and that 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.
This statute, of course, is obviously to be read, just as the courts do read it, along with and as supplementing sections 1106-1113, Revised Statutes 1929 (Mo. St. Ann., secs. 1106-1113, pp. 1401-1404), which have to do generally with the right of a judgment creditor to sue out an execution upon his judgment, or to revive the judgment and lien by scire facias, at any time within ten years after the rendition of the judgment. We understand, too, that not only does section 886 serve under the particular circumstances noted therein to extend the time within which an execution may be issued upon a judgment (State ex rel. v. Buford (Mo. App.), 18 S.W.2d 526), but also that it permits the extension of the vitality of a judgment by the bringing of an action thereon short of the accrual of the bar of limitation, and this despite the method of revival by scire facias expressly provided by the other sections which have been heretofore referred to. [Excelsior Steel Furnace Co. v. Smith (Mo. App.), 17 S.W.2d 378.]
So what plaintiff has in mind, in brief, is that his present suit is of the character of suit contemplated or at least permitted by section 886 for the revival or extension of a judgment or decree unsatisfied and about to expire by limitation of time, and that if the present suit had not been instituted by him, as it was, short of the expiration of ten years from and after the date of the rendition of the original decree, then that decree, by virtue of our several dormancy statutes, would not only have become dormant at the end of such ten-year period, but in fact, under the provisions of section 886, there would have arisen a conclusive presumption that the terms of the decree had been complied with, and no further or subsequent step would have been allowed on plaintiff's part by suit or otherwise looking to the matter of securing defendants' compliance with it.
The trouble with plaintiff's position is,...
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