McFaul v. Haley

• Decision Date: 17 December 1901
• Citation: McFaul v. Haley, 166 Mo. 56, 65 S.W. 995 (Mo. 1901)
• Parties: McFAUL, Appellant, v. HALEY, Executor of GRADY'S Estate
• Court: Missouri Supreme Court

65 S.W. 995

166 Mo. 56

McFAUL, Appellant, v. HALEY, Executor of GRADY'S Estate

Supreme Court of Missouri, First Division

December 17, 1901

Appeal from St. Louis City Circuit Court.-- Hon. Wm. Zachritz Judge.

Reversed and remanded.

Hornsby & Harris for appellant.

(1) As the Act of April 9, 1895, provides for no time within which action on judgments theretofore rendered might be begun, it did not cut short the twenty-year period within which suits thereon might be brought according to the statute in force when the first judgment was rendered.For, if this act was applied to such judgments, it would deprive the judgment creditor of a vested right, and would therefore be unconstitutional and void.Cranor v. School District,151 Mo. 119;McElroy v. Ford,81 Mo.App. 505.(2) The claim originally presented and tried in the probate court in the name of Berrien, the assignee, could properly be permitted to remain in the name of Berrien and be classified in his name, even though he re-assigned the claim to McFaul after trial and before judgment in the probate court.R. S. 1899, sec. 764;Smith v. Phelps,74 Mo 598;Asher v. Railroad,89 Mo. 116;State ex rel. v. Philips,97 Mo. 331.(3) Judgments rendered in the lifetime of a decedent may be presented against his estate in the probate court and classified at any time within twenty years of its rendition, within the two years' limit provided for the presentation of such demands.It is not necessary to revive such judgment by scire facias in order to be entitled to have the same classified in the probate court.Ewing v. Taylor,70 Mo. 396;Kerr's Admr. v. Winner's Admr., 40 Mo. 544.

R. L and John Johnston for respondent.

(1)Appellant having asked no instructions, and the record failing to show upon what theory the trial court tried and determined the issues, in accordance with the uniform rule of this court in such cases, the judgment should be affirmed.Blankenship v. Dilley,162 Mo. 338;Altman v. Arnold,27 Mo. 264;Early v. Elliott,43 Mo. 289;Gaines v. Fender,82 Mo. 508;Miller v. Brencke,83 Mo. 163.(2) The lien of the judgment having long since expired, and never revived, its classing against the estate of Grady by the probate court, was in direct conflict with section 6024,Revised Statutes 1889, andsection 3726,Revised Statutes 1899.Ewing v. Taylor,70 Mo. 397, cited by plaintiff, is overruled in Wernse v. McPike,100 Mo. 487.(3) The provision of the Constitution of the State, that all acts of the Legislature(with designated exceptions) shall remain inoperative for the space of ninety days after the adjournment of the session at which they are passed, entered into, and became a part of the amended limitations law of 1895 as fully and absolutely, as though so expressed in the act itself, thus giving ample time to parties whose rights were to be affected, to take the necessary steps to avoid the bar of the statutes, and appellant having failed to avail himself of the remedy provided, is forever barred.Terry v. Anderson,95 U.S. 628.(4) The unnatural, prolonged, unexplained silence and inaction of the claimant with reference to this judgment, together with the utter insanity of defendant Grady, in his abundantly solvent condition, in permitting an unsatisfied judgment running at ten per cent per annum interest to stand unliquidated up to the date of his death, are facts "pregnant with significance," and taken in connection with the disclosures made by appellant's witness (McCann), fully warranted the trial court in finding the judgment satisfied.Baker v. Stonebraker's Exr., 36 Mo. 338.

R. M. Nichols of counsel for respondent.

(1)Revised Statutes 1899, section 4297, is partly a statute of presumption and partly of limitation.It provides: First."Every judgment . . . . shall be presumed to be paid and satisfied after the expiration of ten years from the date of the original rendition thereof."Second."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."Third."Or, in case 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."Fourth."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."Fifth."And no execution, order or process shall issue thereon, nor shall any suit be brought, had or maintained thereon for any purpose whatsoever"(by inference, for the ten years).The first four paragraphs are clearly presumptions, which have been enacted from the common law, and the fifth paragraph is plainly a statute of limitation, which has been passed upon in the case of Cramer v. School Dist.,151 Mo. 123, which was an action upon a judgment more than ten years old.These presumptions spoken of in the first four paragraphs of the statute are rules of evidence relating to the remedy to be maintained upon the judgment only, and not a limitation, and consequently not subject to the exceptions and incidents of an act of limitation.Gaines v. Miller,111 U.S. 395;Cape Girardeau Co. v. Harbison,58 Mo. 90;Abbott's Trial Evidence, par. 25, p. 812;1 Greenleaf on Evidence (Redf's Ed.), sec. 40, p. 45;2 Ib. sec. 528, p. 489;Campbell v. Brown,86 N.C. 376;Gregory v. Comm.,121 Pa. St. 611;In re Neilly,95 N.Y. 382;Long v. Clegg,94 N.C. 763.(2) Laws which change the rule of evidence relate to the remedy only, and may be applied to existing causes of action.Coe v. Ritter,86 Mo. 277;O'Brien v. Allen,108 Mo. 227;State v. Thompson,141 Mo. 408;Henshall v. Schmidt,50 Mo. 454;Deggs v. Ins. Co.,136 Mo. 396.(3) The proceeding to have the judgment classified in the probate court is merely summary in its nature.This proceeding is in no sense a "civil action," in the meaning of the statute of limitation.R. S. 1899, secs. 184, 191 and 208;Wernse v. McPike,100 Mo. 487;Stevens v. Berneys,119 Mo. 143.(4)The act of classification, being simply the scheduling in the fourth class of an adjudicated claim or judgment, not an allowance, and therefore not a "civil action," the classification by the probate court would not arrest the running of the statute; but when the judgment, rendered December 5, 1878, was offered on the trial de novo in the circuit court on June 5, 1899, the limit prescribed in section 6796,Revised Statutes 1889, having been reached, i. e., the twenty years, the court rightfully rejected the offer.Rabsuhl v. Lack,35 Mo. 316;R. S. 1899, secs. 566 and 4271;Carondelet v. Desnoyer's Admr.,27 Mo. 36;Gibson v. Vaughan's Admr.,61 Mo. 418.(5) The classification of the judgment by the probate court, although made before the lapse of twenty years, would not arrest the evidential force of the common-law presumption of payment, and when the judgment was offered in evidence on the third day of May, 1899, over twenty years after its rendition upon trial de novo in the circuit court, this presumption obtained independent of the statute of presumption or limitation.(a) The trial in the circuit court, upon appeal from the probate court, was de novo, and any new matter of defense could be made.R. S. 1889, sec. 292;Berry v. Shackelford,38 Mo. 394.(b) If section 6796 had been repealed on the day of the trial de novo in the circuit court, the common-law presumption still obtained, to the effect that the judgment then offered in evidence, would be presumed to be paid, if upon its inspection, the evidence showed it to be over twenty years old upon the date of trial.The common-law presumption exists independent of the statute.Clemens v. Wilkinson,10 Mo. 98;Carr v. Dings,54 Mo. 95;Williams v. Mitchell,112 Mo. 311;Shubrick v. Adams,20 S.C. 53;Campbell v. Brown,86 N.C. 376;Bean v. Tonnel,94 N.Y. 381;Reed v. Reed,46 Pa. St. 239.(c) The only act that will arrest or repel the presumption of payment is prescribed by statute(sec. 6796,Revised Statutes 1889), viz.: "Such presumption may be repelled by proof of payment or written acknowledgment of indebtedness, made within twenty years, of some part of the amount recovered by such judgment or decree; in all other cases it shall be conclusive."Lawson on Law of PresumptiveEv., 347, 383.

OPINION

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 City Circuit Court, December 5, 1878, for $ 1,954.25 bearing interest at ten 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 Berrein re-assigned it to McFaul.In the circuit court the re-assignment was shown and McFaul substituted as pla...