Milsap v. Wildman

• Decision Date: 31 May 1838
• Citation: 5 Mo. 425
• Parties: JOSEPH MILSAP v. J. WILDMAN.
• Court: Missouri Supreme Court

5 Mo. 425

JOSEPH MILSAP

v.J. WILDMAN.

Supreme Court of Missouri.

May Term, 1838.

COLE, for Plaintiff in Error. The plaintiff assigned the following as reasons for the reversal of the judgment below: 1. The Circuit Court erred in coercing him to trial at the appearance term. 2. The Circuit Court erred in refusing him a new trial. As to the first point, this is settled adversely to the opinion of the Circuit Court by the statute to regulate the practice at law. That statute prescribes the following rules that should govern in all cases analogous to the present: If the defendant in an action has been served with process according to law, he must appear and plead at the return term, or there will be judgment against him, if the demand be liquidated, but if the demand be not liquidated, yet, upon his making default, there will be an interlocutory judgment, and it is discretionary with the court to direct an inquiry of damages to be had instanter, or at a subsequent term of the court. But if the defendant is not in default, but appears and pleads, and the plaintiff takes issue upon his plea, then, in that case, the cause stands over, continued by operation of law, to the subsequent or trial term of the court. Digest p. 458, §§ 8, 9; p. 461, §§ 34, 35. The action of debt, by petition, is an exception to the general practice of the court. The appearance term is the trial term in this action, unless there is a continuance for cause, or the process has not been served on the defendant in person. It is manifest, therefore, that the Circuit Court interfered in this cause without authority of law, and greatly erred in doing so. The reasons that may have induced the Circuit Court to the exercise of this authority, can only be guessed at. The court may have considered the proceedings on scire facias as an exception to the general practice of the court, and summary in its character; but if such was the foundation of his opinion, it stands unsupported by authority. In reference to this proceeding, I understand the law to be, “that a scire facias is a judicial writ, to which a defendant can make his defense by plea,” 2 Coke Lit. 290. “That a scire facias is an action,” per Buller in Winter v. Kretchman, 2 Durn. & East, 45. “That a scire facias is intended as notice to a party to show cause why an execution should not issue, and to give him an opportunity to plead payment or other discharge, Jackson v. De Lancy, 13 Johns. R. 550. This proceeding, therefore, like other actions (not excepted), must come under and be governed by the statute before referred to.

The second point is, that the court erred in refusing a new trial. The decision of the court was certainly new in practice. The defendant must have been surprised by the introduction of a principle that he could not have very well foreseen. He could not be supposed to have been prepared instanter under such circumstances to maintain the issues in the case on his part, nor did he for a moment even believe, until so decided by the Circuit Court, that a plaintiff in a scire facias, by replying at the appearance term and taking issues on his adversary's plea, would force him to trial at that term, or to continue for cause upon affidavit; because the plaintiff has, by the statute, thirty days from the commencement of the appearance term to reply, and the construction given by the Circuit Court to the statute would give the plaintiff an undue advantage, and impose hardship, surprise and costs on the defendant, which certainly can never be correct. The Circuit Court therefore erred here also, and for which errors, so committed as aforesaid, it is respectfully submitted the judgment should be reversed.

FRISSELL, for Defendant in Error. The legality of a judgment upon a scire facias to revive a judgment at the return term of the writ, when the defendant appears and pleads, is the only point to be settled in this cause. Our statutes either leave this species of scire facias as at common law, or it is regulated by the act concerning judgments and decrees, for there is no other chapter of our statutes that is applicable to the case. Stat. of Mo. p. 339, § 10. By the 10th section of said act (Stat. of Mo. p. 340), it is enacted that if, upon the service of the scire facias, the defendant or his creditors do not appear and show cause against reviving the judgment or decree, the same shall be revived, &c. Ifthe application of this is to be extended no further than to the revival of a judgment to continue...