McFaul v. Haley

CourtUnited States State Supreme Court of Missouri
Writing for the CourtValliant
Citation65 S.W. 995,166 Mo. 56
PartiesMcFAUL v. HALEY.
Decision Date17 December 1901
65 S.W. 995
166 Mo. 56
McFAUL
v.
HALEY.
Supreme Court of Missouri, Division No. 1.
December 17, 1901.

EXECUTORS—PRESENTATION OF JUDGMENT FOR CLASSIFICATION—INSTITUTION OF ACTION—LIMITATIONS—ASSIGNMENT OF JUDGMENT—DEFENSES AVAILABLE.

1. Under Rev. St. 1889, c. 103, § 6797, prescribing that the provisions of this chapter shall not apply to any actions commenced or to any cases where the right of action shall have accrued before the chapter takes effect, Laws 1895, p. 221, repealing section 6796 of the Revised Statutes, and providing in lieu thereof that a judgment shall be presumed to be paid after 10 years from its rendition, or 10 years after the date of a partial payment thereon entered of record, became a part of chapter 103 from the date when it went into effect, and was subject to the provisions of section 6797; and a judgment already in existence, not barred by the 20-year limitations of section 6796, will not be barred by the act of 1895.

2. The presentment to the probate court for classification of a judgment against a testator on which neither execution nor scire facias can issue is, in effect, the institution of a suit on the judgment against the executor, and limitations ceases to run on such judgment from presentation.

3. A contention on appeal in an action against an executor on a judgment that there was evidence from which the court might have found payment of the judgment, and that therefore the finding thereon is conclusive, is without merit, where the bill of exceptions does not show that the defendant offered any evidence.

4. Where, in an action on a judgment, the judgment was excluded, a contention that there was evidence from which the court might have found payment of the judgment, and that therefore the finding thereon is conclusive, is without merit, since no case was left to try.

5. The fact that a judgment was presented to the probate court for classification by an assignee thereof, but before allowance was reassigned to the original owner, and an appeal taken by him to the circuit court, where he was substituted as a party, does not prevent the proceeding from operating to prevent the bar of the judgment by the statute of limitations, under Rev. St. 1899, § 764, providing that, where an interest is transferred in an action, the same shall be continued in the name of the original party if the transferee indemnify the original party against all costs and damages, or the court may allow the transferee to be substituted.

6. Where a judgment against the defendant's testator was presented to the probate court for classification, and an appeal taken to the circuit court, the proceedings therein are the same as if an action on the judgment had been commenced in the circuit court, and any defense available in such an action may be interposed in the action tried on appeal.

Appeal from St. Louis circuit court; Wm. Zachritz, Judge.

Proceedings by Michael McFaul against Andrew Haley, executor of the will of Patrick Grady, deceased. From a judgment in favor of the defendant, the plaintiff appeals. Reversed.

Hornsby & Harris, for appellant. R. M. Nichols and R. L. & John Johnston, for respondent.

VALLIANT, J.


This controversy arose in the presentation for classification in the probate court of an old judgment rendered in favor of the plaintiff against the defendant's testator, Patrick Grady, in his lifetime. The probate court received the claim, and placed it in the fourth class for payment. The executor appealed to the circuit court, where the claim was rejected, and judgment rendered in favor of the executor. From that judgment the plaintiff appeals.

The judgment which is the subject of this proceeding was rendered in the St. Louis circuit court December 5, 1878, for $1,954.25,

65 S.W. 996

bearing interest at 10 per cent. per annum. It was presented to the probate court June 23, 1898, and by order of that court October 10, 1898, was placed in the fourth class of claims allowed against the estate. The judgment, with interest, then amounted to over $5,000. Notice of intention to present the claim for classification had been duly given the executor. It was presented in the name of one Berrien, to whom it had been assigned by McFaul June 16, 1880, as appeared by memorandum to that effect on the margin of the record; and it was allowed or classified for payment in his name, although after its presentation, and before its classification, Berrien reassigned it to McFaul. In the circuit court the reassignment was shown, and McFaul substituted as plaintiff. At the trial in the circuit court there was evidence tending to prove the assignment and reassignment above mentioned, and the statutory affidavit of the claimant in such case. Then the plaintiff offered the circuit court record of his above-mentioned judgment against Grady, of date December 5, 1878. To the introduction of this evidence the defendant executor objected on the ground that the judgment was more than 10 years old, and there was no evidence of any renewal, or of any act to prolong its life, as required under the act of April 9, 1895, and for the further reason that Berrien, at the time the claim was allowed in his name by the probate court, had no interest in it. The court sustained the objection, and the plaintiff excepted. Plaintiff then offered a duly-certified copy of the same judgment, with official indorsements of the probate clerk showing that it was filed in that court October 10, 1898, to which objection on the same grounds as above was made, and also on the ground that at that time (that is, when the evidence was offered at that trial in the circuit court, May 3, 1899) the judgment was more than 20 years old, and was conclusively presumed to have been satisfied, under section 6796, Rev. St. 1889. That objection was also sustained, and the plaintiff excepted. In the statement filed by one of the counsel for respondent it is said that the defendant then introduced evidence of certain circumstances and conditions from which the trior of facts might find that the judgment was satisfied. But, if there was any such evidence, it was not preserved in the bill of exceptions.

The trial court seems to have proceeded on the theory that the case was within the provisions of the act of April 9, 1895, entitled "An act to repeal section 6796 of the Revised Statutes of 1889, entitled `Personal actions,' and to enact a new section in lieu thereof." Laws 1895, p. 221. That act, after repealing section 6796, and declaring this enactment to be in lieu thereof, declares that a judgment shall be presumed to be paid after 10 years from the date of its rendition, or 10 years after the date of a partial payment thereon entered of record, and that no execution or other process shall issue on a judgment after that period, nor shall any suit be maintained thereon. Section 6796 declares that a judgment shall be presumed to be paid after 20 years, but that in a suit on the judgment the presumption may be repelled by evidence of...

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14 practice notes
  • Telanus v. Simpson, No. 26846.
    • United States
    • United States State Supreme Court of Missouri
    • December 31, 1928
    ...from those present in the Cranor case. There, the plaintiff's cause of action accrued before the revised act took effect. McFaul v. Haley, 166 Mo. 56, was a proceeding to have allowed and classified by a probate court, a judgment, which had been rendered on December 5, 1878, and was not pre......
  • Bunch v. United States, 4999.
    • United States
    • United States Courts of Appeals. United States Court of Appeals (8th Circuit)
    • September 2, 1918
    ...v. Hickman, 165 F. 403, 404, 405, 91 C.C.A. 353, 354, 355; Cranor v. School District, 151 Mo. 119, 123, 52 S.W. 232; McFaul v. Haley, 166 Mo. 56, 62, 63, 64, 68, 65 S.W. 995; Tice v. Fleming 173 Mo. 49, 53, 55, 72 S.W. 689, 96 Am.St.Rep. 479; Goddard v. Delaney, 181 Mo. 564, 571, [252 F. 67......
  • Adams v. Wright, No. 39262.
    • United States
    • United States State Supreme Court of Missouri
    • May 1, 1945
    ...that the evidence was sufficient to make a submissible issue on the question of payment, and we so rule. See also McFaul v. Haley, 166 Mo. 56, 65 S.W. 995; Linderman et al. v. Carmin, 255 Mo. 62, 164 S.W. [3] As appears, supra, one of the grounds upon which the trial court granted the new t......
  • State ex rel. Alsup v. Kanatzar, No. SC 97427
    • United States
    • United States State Supreme Court of Missouri
    • December 10, 2019
    ...on the nature of a ministerial act. Generally, a ministerial act has long been defined as merely "clerical." E.g. , McFaul v. Haley , 166 Mo. 56, 65 S.W. 995, 998 (Mo. 1901). And this Court has noted that a ministerial duty compels a task of such a routine and mundane nature that it is like......
  • Request a trial to view additional results
14 cases
  • Telanus v. Simpson, No. 26846.
    • United States
    • United States State Supreme Court of Missouri
    • December 31, 1928
    ...from those present in the Cranor case. There, the plaintiff's cause of action accrued before the revised act took effect. McFaul v. Haley, 166 Mo. 56, was a proceeding to have allowed and classified by a probate court, a judgment, which had been rendered on December 5, 1878, and was not pre......
  • Bunch v. United States, 4999.
    • United States
    • United States Courts of Appeals. United States Court of Appeals (8th Circuit)
    • September 2, 1918
    ...v. Hickman, 165 F. 403, 404, 405, 91 C.C.A. 353, 354, 355; Cranor v. School District, 151 Mo. 119, 123, 52 S.W. 232; McFaul v. Haley, 166 Mo. 56, 62, 63, 64, 68, 65 S.W. 995; Tice v. Fleming 173 Mo. 49, 53, 55, 72 S.W. 689, 96 Am.St.Rep. 479; Goddard v. Delaney, 181 Mo. 564, 571, [252 F. 67......
  • Adams v. Wright, No. 39262.
    • United States
    • United States State Supreme Court of Missouri
    • May 1, 1945
    ...that the evidence was sufficient to make a submissible issue on the question of payment, and we so rule. See also McFaul v. Haley, 166 Mo. 56, 65 S.W. 995; Linderman et al. v. Carmin, 255 Mo. 62, 164 S.W. [3] As appears, supra, one of the grounds upon which the trial court granted the new t......
  • State ex rel. Alsup v. Kanatzar, No. SC 97427
    • United States
    • United States State Supreme Court of Missouri
    • December 10, 2019
    ...on the nature of a ministerial act. Generally, a ministerial act has long been defined as merely "clerical." E.g. , McFaul v. Haley , 166 Mo. 56, 65 S.W. 995, 998 (Mo. 1901). And this Court has noted that a ministerial duty compels a task of such a routine and mundane nature that it is like......
  • Request a trial to view additional results

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