Kennedy v. Boden

Citation231 S.W.2d 862,241 Mo.App. 86
Decision Date05 June 1950
Docket NumberNo. 21335,21335
PartiesKENNEDY et al. v. BODEN.
CourtCourt of Appeal of Missouri (US)

Cortner & Beals, Kansas City, for appellant.

Roy W. Crimm, Kansas City, for respondents.

BOUR, Commissioner.

This is an appeal from an order of the circuit court of Jackson County overruling appellant's motion to quash an execution issued against him by that court. The record shows that on September 20, 1929, James B. O'Connor and J. S. O'Connor recovered a judgment for $408.12 against appellant in a justice court of Jackson County. On October 15, 1929, a certified transcript of this judgment was filed in the office of the circuit clerk of Jackson County. On September 20, 1939, James B. O'Connor and J. S. O'Connor filed in the office of said circuit clerk an application for a writ of scire facias to revive the judgment of the justice court. On the same day the clerk of the circuit court issued such a writ and appellant was served with a copy thereof on October 2, 1939. On February 5, 1940, a judgment in the form of a general judgment was rendered for $660.02, which included the amount of the justice court judgment for $408.12 and interest thereon from September 20, 1929 in the sum of $251.90. Appellant did not appear either in the original action in the justice court or in the action in the circuit court on the scire facias, and the judgment in each case was rendered against him by default. On June 15, 1948, James B. O'Connor and J. S. O'Connor assigned this judgment to M. A. Kennedy, the respondent herein, and the assignment was attached to the judgment entry. On May 20, 1949, the clerk of the circuit court issued a general execution against appellant for $660.02 and interest from February 5, 1940, the date of the circuit court judgment, and the sheriff made a levy on appellant's property. Thereafter, appellant filed a motion to quash the execution on the grounds that the circuit court had no jurisdiction to render the judgment of February 5, 1940, and that the 'said execution is a nullity, not complying with the statutes as to issuing execution on assigned judgments.' The parties have stipulated 'that no part of said asserted judgment, or the debt or obligation on which it was founded, has ever been paid or satisfied by appellant or anyone but, if valid, remains fully undischarged.'

Appellant contends that the justice court judgment rendered on September 20, 1929 was conclusively presumed to be paid and satisfied after September 20, 1939, and, therefore, that the circuit court 'had no jurisdiction on February 5, 1940 to render a judgment of revival or a new judgment on said justice court judgment,' citing sections 1308, 1014, 2687, 2696, R.S.Mo.1939, Mo.R.S.A. All of these statutes were in effect at the times mentioned herein. Section 2696, R.S.1939, Mo.R.S.A., which dealt with revival proceedings in a justice court, provided that 'no judgment shall be revived after the lapse of ten years from the rendition thereof, or from the date such judgment may have been revived, as hereinbefore provided.' In German Literary Society v. Bloch, 143 Mo.App. 7, 12, 122 S.W. 351, 353, it was held that section 2696 'fixes the limit of time in which a revival may be ordered, and not in which it may be applied for, as in the case in proceedings to revive a judgment in a court of record,' so that a judgment rendered by a justice on February 25, 1897 could not be revived by a judgment of the justice rendered on March 28, 1907, although the petition to revive was filed on February 21, 1907, and within the ten-year period. In the instant case, however, we are not confronted with a revival proceeding before a justice of the peace. Here, a certified copy of a judgment rendered by the justice on September 20, 1929 was filed in the circuit clerk's office on October 15, 1929. On September 20, 1939, the plaintiffs in the justice court action filed in the circuit court an application for a writ of scire facias to revive the judgment and the writ was issued on the same day; but the circuit court did not enter the judgment in question until February 5, 1940.

Section 2686, R.S.Mo.1939, Mo.R.S.A., related to the matter of filing a certified copy of a judgment of a justice in the office of the circuit clerk. Section 2687, R.S.Mo.1939, Mo.R.S.A., provided that from the time of the filing of the transcript in the circuit court the judgment 'shall have the same lien on the real estate of the defendant in the county as is given to judgments of circuit courts, and shall be under the control of the court where the transcript is filed; may be revived and carried into effect in the same manner and with like effect as judgments of the circuit courts, and executions issued thereon may be directed to and executed in any county in the state; * * *.' Section 1271, R.S.Mo.1939, Mo.R.S.A., relating to revival proceedings in the circuit court provides: '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 a judgment, no scire facias shall issue.'

It will be noticed that Section 2696, supra, which dealt with revival proceedings in a justice court provided that 'no judgment shall be revived after the lapse of ten years from the rendition thereof,' whereas the section just quoted contains no such limitation. We believe that under sections 2686 and 2687, supra, the justice's judgment in the present case became a judgment of the circuit court for the purposes of revival when a transcript of the judgment was filed in the circuit court, and that section 1271 rather than section 2696 governs this case. Such was the ruling in Longlett v. Eisenberg, 222 Mo.App. 805, 10 S.W.2d 317. In that case the judgment of the justice of the peace was rendered on December 20, 1915, and the transcript of the judgment was filed in the circuit court on March 13, 1916. The application for a writ of scire facias to revive the judgment was filed in the circuit court on December 18, 1925, and on the same day the writ was issued; but, as in the present case, the revival proceeding was not consummated within ten years from the date of the justice's judgment. It was held that the revival proceeding in the circuit court was not barred under section 2696 by the lapse of a ten-year period between the time of the entry of the justice's judgment and the consummation of the revival proceeding, since the judgment was a circuit court judgment for the purposes of revival, and therefore was governed by section 1271. The court said, 10 S.W.2d loc. cit. 318: 'We think there can be no doubt that, under section 1557 (now section 1271) of our statute, supra, it is enough that you sue out the writ of scire facias within ten years from the date of the judgment.' We believe that this decision is sound. See also City of St. Louis v. Miller, Mo.App., 155 S.W.2d 565. In the instant case, as in the Longlett case, the application for a writ of scire facias was filed in the circuit court and the writ was issued within the ten-year period, so that the revival proceeding was not barred by section 1271. As to computation of time see section 655, R.S.Mo.1939, Mo.R.S.A.; White v. Teague, 353 Mo. 247, 258, 182 S.W.2d 288, 291; Thompson v. Farmers' Exchange Bank, 333 Mo. 437, 448, 62 S.W.2d 803, 807.

Appellant also relies on section 1038, R.S.Mo.1939, Mo.R.S.A., which provides that '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, * * *.' This statute does not aid defendant, for it has been held that if scire facias to revive a judgment is issued prior to the expiration of ten years from the date of rendition of the judgment, the judgment of revival is valid under section 1038, although rendered after the expiration of the ten years. In re Jackman's Estate (Flink v. Parcell), 344 Mo. 49, 124 S.W.2d 1189. Appellant relies on the following cases: Wormington v. City of Monett, 358 Mo. 1044, 218 S.W.2d 586; Northwestern Brewers Supply Co. v. Vorhees, 356 Mo. 699, 203 S.W.2d 422; Union Nat'l Bank of Wichita, Kansas, v. Lamb, 358 Mo. 65, 213 S.W.2d 416; Chittenden v. Graves, 148 Mo.App. 537, 128 S.W. 522. In the first case, the question was whether section 1038 was suspended or tolled during an appeal so that the ten-year period did not commence to run against plaintiff's judgment until the appeal was finally disposed of. The second case involved an action on a Wisconsin judgment; and the third an action on a revived Colorado judgment. The fourth case held that an action on a justice's judgment was barred after five years by what is now section 1014, R.S.Mo.1939, Mo.R.S.A. Since none of these cases involved a proceeding to revive a judgment of this state, they are not in point.

Appellant also contends that the judgment of the circuit court is void because: 'The alleged judgment rendered on February 5, 1940, was a general judgment and not a judgment of revival. The judgment is not supported by the pleadings and the court had no jurisdiction to render a general judgment on an application for scire facias. It is a judgment for interest on interest which cannot be had on revival.' As stated, the original judgment was rendered on September 20, 1929 for $408.12. On September 20, 1939, a petition was filed in the circuit court praying for a scire facias to revive the judgment. Upon the filing of the petition a scire facias issued as prayed, which was duly served on appellant, and upon its return, appellant making default, the court on February 5, 1940, rendered a judgment against appellant which reads in part as follows: 'Now on this day this cause coming on regularly for trial * * * the court finds the issues for plaintiffs and against defendant;...

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  • Treme v. St. Louis County, 40523
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    ...1019 (1927) (22). See Weatherford v. Spiritual Christian Union Church, 163 S.W.2d 916, 918 (Mo.1942) (2-4); Kennedy v. Boden, 241 Mo.App. 86, 231 S.W.2d 862, 865-866 (1950) (3, 4); Poole v. Poole, 287 S.W.2d 372, 374 (Mo.App.1946) (3); Masters v. Masters, 315 S.W.2d 870, 872 (Mo.App.1958) (......
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