Mayes v. Mayes

• Decision Date: 03 May 1938
• Docket Number: 35660
• Citation: 116 S.W.2d 1,342 Mo. 401
• Parties: Helen G. Mayes, now Helen G. Zorn, Appellant, v. Oscar L. Mayes
• Court: Missouri Supreme Court

116 S.W.2d 1

342 Mo. 401

Helen G. Mayes, now Helen G. Zorn, Appellant, v. Oscar L. Mayes

No. 35660

Supreme Court of Missouri

May 3, 1938

Appeal from Buchanan Circuit Court; Hon. F. J. Frankenhoff Judge.

Affirmed.

Chas F. Keller and S. P. Reynolds for appellant.

(1) The court erred in quashing plaintiff's execution because the judgment is a continuing judgment and the court may enforce the same as to custody and maintenance of the minor until the minor attains his majority. No other court has any jurisdiction. R. S. 1929, sec. 1355; Kelley v Kelley, 47 S.W.2d 762; Meredith v. Kranthoff, 191 Mo.App. 149; Shannon v. Shannon, 97 Mo.App. 119; Salky v. Salky, 80 S.W.2d 735; In re Kohl, 82 Mo.App. 442; Hays v. Hays, 75 S.W.2d 614; In re Gladys Morgan, 117 Mo. 249; Kaestner v. Kaestner, 58 S.W.2d 494. (2) The court should not have applied the general law quashed plaintiff's execution because Article 3 of Chapter 7 is a special statutory provision not controlled by the general law and is a code unto itself controlled exclusively by its own provisions like landlord and tenant, unlawful detainer, homestead, and other provisions of the statutes of special codes. Dennis v. Gorman, 289 Mo. 1; State ex rel. v. Allen, 45 Mo.App. 551; Wilson v. Teale, 88 S.W.2d 422. (3) The court erred in quashing plaintiff's execution because under the written law, the moral law and the humanitarian law of our Missouri civilization all require defendant to support his child. Before defendant will be absolved from his duty under Section 1355, Revised Statutes 1929, he must point to a positive law by which said Section 1355 is annulled. This is so well settled that citation of authorities is unnecessary. (4) That this is a continuing judgment there can be no question. It being true that this is a continuing judgment, it was made so by law for a purpose, that purpose can be for nothing else than the care of this minor child.

Sherman & Sherman for respondent.

(1) A judgment may be revived within ten years by suing out a scire facias, but no scire facias shall issue after ten years. Sec. 1106, R. S. 1929. (2) Execution cannot be issued after ten years, unless revived. Dreyer v. Dickman, 111 S.W. 616; Remmers v. Wolf's Estate, 226 S.W. 290; Hauck v. Hauck, 200 S.W. 679; Eubank v. Eubank, 29 S.W.2d 212; State ex rel. Meyer v. Buford, 18 S.W.2d 526. (3) Absence from the State or whereabouts of defendant unknown is no justification for not reviving the judgment, as the same may be done by publication. Sec. 1110, R. S. 1929. (4) A payment on the judgment to come within Section 886, Revised Statutes 1929, to stop the running of the Statute of Limitations once started must be made by or with the consent of the payor and the credit of payment made more than ten years after the judgment without the knowledge or consent and without authority of the judgment debtor will not serve to check the Statute of Limitations. Eubank v. Eubank, 29 S.W.2d 215. (5) A judgment for alimony whether in gross, from month to month, or from year to year, is a debt of record as much as any other judgment for money; and becomes dormant after the lapse of the statutory period, unless revived or unless voluntary payments have been made thereon. Remmers v. Wolf's Estate, 226 S.W. 292; Nelson v. Nelson, 221 S.W. 1066; Chapman v. Chapman, 192 S.W. 448; Hauck v. Hauck, 200 S.W. 680; Francis v. Francis, 179 S.W. 975; Dreyer v. Dickman, 111 S.W. 616; Eubank v. Eubank, 29 S.W.2d 212.

Cooley, C. Westhues and Bohling, CC., concur.

OPINION

COOLEY

This is an appeal from a judgment of the Circuit Court of Buchanan County quashing an execution issued out of that court in a case wherein Helen G. Mayes, appellant, was plaintiff and respondent Oscar L. Mayes was defendant. The case was appealed to the Kansas City Court of Appeals where, by a divided court, the judgment was reversed and the cause remanded. The appellate court, because of conflict between its decision and prior decisions of the St. Louis Court of Appeals, certified the case to this court. Said decision of the Kansas City Court of Appeals is reported in Mayes v. Mayes, 104 S.W.2d 1019.

Prior to May 7, 1920, respondent and appellant were husband and wife and had an infant child, Howard, aged about three years when the parents were divorced. On said May 7, 1920, appellant was, by the Circuit Court of Buchanan County, granted a divorce from respondent with custody of said infant child. There was personal service of process on defendant in that case (respondent here). The petition in the divorce case, after alleging the marriage, the birth of the child, and stating the grounds of divorce relied on, alleged that the defendant was an able-bodied man, capable of earning large sums of money and that she, plaintiff, was without means of support, and, after asking for a divorce, prayed:

"That she may have the care and custody of her said infant child, and that the court will adjudge to her out of the property of said defendant such support and maintenance and for such time as the nature of the case and the condition of the parties named require; and that the court will make such further orders and judgments from time to time touching the premises as to the court shall seem meet and just."

The decree in the divorce suit found the issues for the plaintiff, awarded her a divorce and custody of the child and adjudged "that for alimony and support of said minor child, plaintiff be allowed the sum of twenty-five dollars per month, the first payments to be made forthwith (then follows allowance of attorney fees), for which said several allowances (and costs), plaintiff have execution against defendant."

It appears that defendant left this State, either before or immediately after the granting of the divorce, without having made any payments to plaintiff under the decree, and remained outside the State until after the issuance of the execution herein.

Appellant, plaintiff in the divorce suit, never revived or took steps to revive the judgment for alimony and maintenance.

About the last of December, 1935, respondent, defendant in the divorce suit, became seized by inheritance from his father of certain property in Buchanan County. On June 25, 1936, appellant sued out the execution herein involved under said judgment of May 7, 1920, in the divorce suit. The execution recited that the plaintiff had recovered a judgment for $ 4,400 "for child support and attorney's fees" and $ 1.74 costs and commanded levy for "said debt and costs." Proceedings followed which it is unnecessary to detail. Eventually respondent filed a motion to quash the execution on the ground that more than ten years had elapsed since the rendition of the judgment under which the execution was issued and there had been no revival of the judgment. The motion was sustained and this appeal followed. Such further facts as may be necessary will be stated in the course of the opinion.

As said by the Court of Appeals the question involved requires consideration of Section 886, Revised Statutes 1929 (Mo. Stat Ann., p. 1168), reading 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."

But we think other statutory provisions and the previous rulings of our courts of last resort must also be considered.

Section 1106, Revised Statutes 1929 (Mo. Stat. Ann., p. 1401), provides that a plaintiff or his legal representatives may, at any time within ten years, sue out a scire facias to revive a judgment and lien but that no scire facias shall issue after ten years from rendition of the judgment. Sections 1107 to 1112, inclusive, provide the procedure for obtaining revival of the judgment and the effect thereof. If personal service of scire facias to revive cannot be obtained, service by publication is provided for, upon which the judgment may be revived as on personal service and (Sec. 1112), there may be successive revivals; so that whether the defendant remains subject to personal service of process or not the plaintiff can keep the judgment and lien alive.

Section 1113, Revised Statutes 1929 (Mo. Stat. Ann., p. 1404), provides that executions may issue upon a judgment at any time within ten years after its rendition. This section does not in terms say that an execution shall not issue after ten years, but, as held in State ex rel. Meyer v. Buford (Mo. App.), 18 S.W.2d 526, it so implies unless other statutory provisions provide an exception. In that case the time was held to have been extended by payments made within the ten year period as provided in Section 886, supra.

It has several times been held in this State that a judgment for alimony, whether in gross or payable in periodical installments, is subject to the same incidents as other judgments in actions at law and becomes dormant ten years after rendition unless kept alive by payments within such period or by revival. See the following: -- ...