McFaul v. Haley

• Decision Date: 17 December 1901
• Citation: 65 S.W. 995,166 Mo. 56
• Parties: McFAUL v. HALEY.
• Court: Missouri Supreme Court

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 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 partial payment or written acknowledgment of the obligation within the 20 years; otherwise the presumption is to be conclusive. That section is a part of chapter 103. The section in that chapter next following is: "Sec. 6797. The provisions of this chapter shall not apply to any actions commenced or to any cases where the right of action or of entry shall have accrued before the time when this chapter takes effect, but the same shall remain subject to the laws then in force." The act of 1895 took the place of section 6796, and became a part of that chapter, and subject to the same conditions that the section it had taken the place of had been subject to. The chapter, so far as its amended feature was concerned, took effect when the amendatory act took effect, and hence, by its very terms, did not apply to a cause of action then in existence, but such cause of action was to remain subject to the laws in force when it accrued. The judgment in question, which was the plaintiff's cause of action, was in existence when the act of 1895 was passed, and comes within the expressed exception, and is therefore governed by section 6796, as it appears in the Revised Statutes of 1889. Under the provisions of that section the plaintiff's judgment was not barred, nor was it under the ban of the statutory presumption of payment, in June, 1898, when it was presented to the probate court. But it had passed the age when execution could issue on it, or when it could be revived by scire facias. It could then be rendered available to the plaintiff only by a suit, and a new judgment founded on it. If the testator had been living, it would have been prima facie a good cause of action against him; and, as he was dead, it was prima facie a good cause of action against his executor, either in the circuit court or in the probate court. Ewing v. Taylor, 70 Mo. 394. Counsel argue that, when a judgment is presented against an estate in the probate court, it is not presented for allowance, but for classification only; citing Wernse v. McPike, 100 Mo. 487, 13 S. W. 809, and Stephens v. Bernays, 119 Mo. 143, 24 S. W. 46. And from this they seek to draw the conclusion that ...