Mayes v. Mayes

• Decision Date: 03 May 1937
• Docket Number: No. 18918.,18918.
• Court: Missouri Court of Appeals
• Parties: MAYES v. MAYES.

104 S.W.2d 1019

MAYES v. MAYES.

No. 18918.

Kansas City Court of Appeals. Missouri.

May 3, 1937.

Transferred to Supreme Court May 3, 1937.

Appeal from Circuit Court, Buchanan County; Wm. H. Utz, Judge.

Suit by Helen G. Mayes, now Helen G. Zorn, against Oscar L. Mayes for divorce, wherein the plaintiff was granted a decree of divorce against the defendant, and was awarded a certain sum per month for alimony and support of the minor child of the parties. From a judgment granting the defendant's motion to quash an execution issued on the judgment, the plaintiff appeals.

Reversed and cause ordered to be remanded for further proceedings in accordance with opinion and cause certified to the Supreme Court.

Chas. F. Keller and S. P. Reynolds, both of St. Joseph, for appellant.

Sherman & Sherman, of St. Joseph, for respondent.

SHAIN, Presiding Judge.

In the case at bar the question of the application of section 886 of chapter 5 of article 9, R.S.Mo.1929 (Mo.St.Ann. § 886, p. 1168), to a decree for maintenance of minor child made by the circuit court in judgment in divorce proceedings, is involved. Section 886 reads as follows:

"Judgments presumed to be paid, when— presumption, how repelled. 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."

In this case the appellant herein was, by the circuit court of Buchanan county, Mo., granted a decree of divorce against respondent on May 7, 1920.

It appears that respondent, the defendant in the divorce case, was served by personal notice in the state of Missouri, but made default. It is shown that there was born of the marriage a child and the child was approximately three years of age at the time of the divorce.

It is shown that in connection with the divorce decree the court entered its orders and decree as follows: "It is further ordered, adjudged and decreed by the court that the plaintiff have the care, custody, and control of Howard L. Mayes, minor child of plaintiff and defendant, and 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, and that Chas. F. Keller, attorney for said plaintiff, be allowed an attorney fee of fifty dollars; for which said several allowances, together with all the costs in this behalf expended, plaintiff have execution against defendant."

It further appears that prior to the orders and decrees above set forth the respondent had absconded from the state of Missouri and had remained out of this state and was still out of this state when the proceedings herein were begun on the 25th day of June, 1936.

It further appears that there had never been any scire facias issued in the case and no revival of the judgment ever had by decree of court or by voluntary payment made thereon by the respondent.

It further appears that the respondent in 1936 had become vested with property located in this state and that, on June 25, 1936, at the request of appellant, an execution was issued out of the circuit court of Buchanan county based upon aforesaid judgment of May 7, 1920, and that said execution was executed on July 2, 1936, by making levy on the aforesaid property that had become vested in respondent.

On October 15, 1936, and during the October term of the circuit court of Buchanan county, Mo., the respondent herein filed motion to quash the execution of June 25, 1936. Said motion to quash was taken up and sustained on October 16, 1936.

Thereafter appellant moved the court to set aside judgment sustaining aforesaid motion to quash and on November 5th, and during aforesaid October term, 1936, said motion to set aside was refused and from said judgment of refusal an appeal was duly taken by the plaintiff in aforesaid divorce suit.

The appellant's contention is that the court committed error in quashing aforesaid execution and this contention is based upon the claim that the judgment in a divorce case is a continuing judgment wherein the court granting the decree of divorce retains full jurisdiction of the matters of custody and maintenance of the minor children until they become of age and that the judgment cannot be extinguished and the court be deprived of its jurisdiction by such a presumption as is enunciated in aforesaid section 886. In other words, it is contended that said section does not apply so as to nullify the jurisdiction given to the circuit court by the provisions of article 3 of chapter 7 of R.S.Mo.1929 (section 1350 et seq. [Mo. St.Ann. § 1350 et seq., p. 1552 et seq.]).

The respondent contends that section 886, aforesaid, has application to the orders and decrees for maintenance of minor children in divorce judgment and that as applied to the uncontradicted facts in the case at bar the judgment for maintenance of May 7, 1920, has become extinguished and that no execution can now be issued thereon.

Section 886, supra, evidently refers to and applies to money judgments that can be satisfied and extinguished by payment. The statute is not a rule of limitation, but is a rule of evidence and the absence of a judgment creditor from this state does not affect the rule. Cobb v. Houston, 117 Mo.App. 645, 94 S.W. 299.

There is no Supreme Court case cited and we find none wherein the direct issue presented in this case, to wit, application of the rule of said section to judgment for maintenance in a divorce proceeding, has been before the Supreme Court of this state.

The Supreme Court of Missouri, however, has frequently given application of said section 886 to judgments for debt both ex contractu and ex delicto wherein the very obligation of the judgment is for a fixed and definite debt based upon a debt created by contract or per force of damages for tort.

In our research we find that in all cases, wherein the conclusive presumption of said section 886 is given application, the court has treated the statute as a rule of extinguishment. The judgment to which it applied is referred to in the sense that the judgment is dead and therefore has ceased to have any probative effect.

In Kansas City v. Field, 270 Mo. 500, 194 S.W. 39, 43, the Supreme Court, in applying the conclusive presumption of payment to a judgment in a tax suit, uses this language: "We conclude that a judgment expires by limitation, cæteris paribus, in 10 years after it is rendered in the circuit court, whether such judgment be appealed from or not."

The language above must not be construed as applying to all judgments, but as applying to the class of debt and judgment under consideration. Otherwise, a judgment for divorce would be concluded as expired by limitation in ten years, and the same would be true of judgment in suit to quiet title.

The question involved in the case at bar, to wit, application of the presumption provided in said section 886, has been repeatedly before the St. Louis and Kansas City Court of Appeals of this state and the opinions of these courts clearly sustain the position taken by the respondent in the case at bar.

In Hauck v. Hauck, 198 Mo.App. 381, 200 S.W. 679, an opinion by the St. Louis Court of Appeals, the mother, after full term of ten years after judgment for maintenance of the minor child was rendered, undertook by garnishment to collect for the allowance made. The St. Louis Court of Appeals in its opinion directly applied the presumption provided in section 886 and held that the judgment was dead.

The judgment in the Hauck Case cites Francis v. Francis, 192 Mo.App. 710, 179 S.W. 975, and Dreyer v. Dickman et al., 131 Mo.App. 660, 111 S.W. 616.

Further the opinion in the Hauck Case also cites the decision of the Supreme Court in Chapman v. Chapman, 269 Mo. 663, 192 S.W. 448, wherein a divorce suit is declared as a suit at law and also cites the opinion in Biffle v. Pullam, 114 Mo. 50, 21 S.W. 450, wherein it is held that judgments for alimony in divorce proceedings are held to be subject to the same incidents as judgments in other actions at law.

In the consideration and application of judicial precedent, it is always well to keep in mind that the language used in the opinion of the court does not necessarily apply to issues and situations not involved in the case wherein the opinion is written.

It will be noted in the Chapman Case, supra, the question of chancery remedy of sequestration for contempt of court was involved and the conclusion of the court is that regardless of the fact that in divorce proceedings the court is called upon to, incidently, decide collateral questions of equity yet by force of statute the proceeding is one at law. It will also be noted that in the Biffle Case, supra, the question of a homestead being exempt from execution in judgment for alimony was the question before the court.

In neither the Chapman or the Biffle Case, supra, is there in issue the question of the application of the conclusive presumption provided for in section 886, R. S.Mo.1929 (Mo.St.Ann. § 886, p. 1168). An examination of the Chapman and Biffle Cases discloses that the question of maintenance of a minor child is not involved. In the Biffle Case a...