McReynolds v. Vawter, WD30991

• Decision Date: 05 May 1980
• Docket Number: No. WD30991,WD30991
• Citation: 600 S.W.2d 159
• Parties: James D. McREYNOLDS and Gloria J. McReynolds, Appellants, v. Robert E. VAWTER, Respondent.
• Court: Missouri Court of Appeals

Page 159

600 S.W.2d 159

James D. McREYNOLDS and Gloria J. McReynolds, Appellants, v. Robert E. VAWTER, Respondent.

No. WD30991.

Missouri Court of Appeals, Western District.

May 5, 1980.

Motion for Rehearing and/or Transfer to Supreme Court Denied

June 9, 1980.

Application to Transfer Denied July 15, 1980.

Dennis E. Egan, Gage & Tucker, Kansas City, for appellants.

Harlow B. King, Robert E. Fitzgerald, Jr., Dale H. Sizemore, Jr., Hoskins, King, McGannon, Hahn & Hurwitz, Kansas City, for respondent.

Before WASSERSTROM, C. J., Presiding, and PRITCHARD and KENNEDY, JJ.

WASSERSTROM, Chief Judge.

The question for decision here is whether plaintiffs timely "sued out" a writ of scire facias to revive judgment and lien in their favor. The trial court held that they had not, from which order plaintiffs now appeal. We affirm.

The judgment in question was entered by the circuit court on January 30, 1969. On August 1, 1977, plaintiffs filed an Application for Writ of Scire Facias. Not until January 30, 1979, did plaintiffs' counsel check to ascertain what action, if any, had been taken in the court administrator's office with respect to that application. On January 30, 1979, however, plaintiffs' counsel did investigate this matter and discovered that the custom and practice in the court administrator's office was for counsel to fill out and furnish the requested writ to the administrator's office for further handling. That completed form not having been received, the court administrator's office had merely placed the application in the file without further action.

On February 8, 1979, plaintiffs' counsel completed and furnished to the court administrator a form of writ together with request for summons. These two documents both showed defendant's address to be 8652 Riggs, Overland Park, Kansas an address different from that which had been given in the 1977 application. The court administrator, upon receipt of these two documents, promptly issued the writ that same day and the writ was served in Johnson County, Kansas, February 13, 1979.

Soon thereafter, on March 8, 1979, defendant filed a Motion to Quash Writ of Scire Facias, on the basis that the writ had not been sued out within the permitted ten year period. The order of the circuit court sustaining that motion gives rise to this appeal.

The legal issue here a to the timeliness of the scire facias is governed by Rule 74.36 which provides:

"The plaintiff or his legal representative may, at any time within ten years, sue out a scire facias to revive a judgment and lien; but after the expiration of ten years from the rendition of the judgment no scire facias shall issue. The scire facias may be in the form of an order to show cause issued on motion ex parte by the clerk or judge of the court."

Defendant argues that the writ itself is the instrument serving both as the initial pleading and as the summons in the scire facias proceeding, and thus the issuance of that document serves the function of commencing the proceeding. Defendant's argument continues that the writ was not issued until February 8, 1979, more than ten years after the judgment, and therefore came too late.

Plaintiffs rejoin that the commencement of the scire facias proceeding occurred upon the filing of their application for the writ on August 1, 1977. They argue that upon their filing of that application, the issuance of the writ became a clerical duty of the court administrator. They conclude that since the 1977 application was well within ten years of the judgment, the scire facias proceeding is timely.

In support of their position, plaintiffs rely upon City of St. Louis v. Miller, 235 Mo.App. 987, 145 S.W.2d 504 (1941). In that case there was a judgment entered March 7, 1928. Plaintiff filed a petition for writ of scire facias on March 5, 1938. Upon the filing of that petition, the circuit court on the same day ordered that a writ of scire facias issue. However, the circuit clerk failed to actually issue the writ until March 8, 1938. The defendant moved to quash the writ on the ground that the issuance was more than ten years after the judgment. The circuit court did quash the writ, but the court of appeals reversed. In so doing, the court of appeals drew an analogy to the problem of when a new suit is deemed "commenced" so as to save the suit from the bar of the statute of limitations. The court cited the line of Missouri cases which holds that when the petition is filed before the period of limitations is expired but process is not issued until after the expiration of that period, the suit is deemed commenced on the date that the petition is filed. The court of appeals' opinion then proceeded as follows:

"The filing of a petition for a writ of scire facias to revive a judgment, though proper, is unnecessary. The writ may be applied for by petition, motion, or praecipe. (citing cases) The application for the writ, whether it be in the form of a petition, motion, or praecipe, does not initiate an original suit. It does however, initiate the proceeding for the revival of the judgment. In that respect it serves an essential function. It serves no essential function as a pleading. That function is served by the writ. Defendant contends that since the writ serves the double purpose of pleading and process, the proceeding for revival of the judgment is not commenced until the writ is issued, and thus draws a distinction between an original suit and scire facias. We regard the distinction as unsubstantial. The underlying principle, supporting the doctrine that the filing of the petition in an original...