Moore v. Luna, No. 12200
| Court | Court of Appeal of Missouri (US) |
| Writing for the Court | HOGAN; PREWITT, P. J., and BILLINGS |
| Citation | 626 S.W.2d 417 |
| Parties | Darrell MOORE, d/b/a Moore Cattle Company, Plaintiff-Respondent, v. Charles LUNA, Defendant-Appellant. |
| Docket Number | No. 12200 |
| Decision Date | 16 December 1981 |
Page 417
v.
Charles LUNA, Defendant-Appellant.
Bob J. Keeter, Jones, Keeter, Karchmer, Nelms & Sullivan, Springfield, for defendant-appellant.
Jerry L. Reynolds, Bonacker & Reynolds, P.C., Springfield, for plaintiff-respondent.
HOGAN, Judge.
On March 14, 1978, plaintiff Darrell Moore had judgment against defendant Charles Luna in the amount of $1,860 as actual damages and $5,580 as punitive damages. On March 4, 1981, pursuant to Rule 74.36 1 plaintiff filed an ex parte motion praying issuance of a writ of scire facias to revive the judgment and the lien thereof. As provided by Rule 74.36, an order to show cause issued and was directed to the Sheriff of Taney County for service as required by Rule 74.39. A return showing personal service was filed March 10, 1981.
On that same day and within 3 years of the rendition of the original judgment, defendant filed a five-paragraph motion to set aside the judgment for irregularity as permitted by Rule 74.32. The first four paragraphs of this motion aver, in substance, that the original judgment is defective because: (a) the petition filed in the original case was drawn in two counts; (b) the judgment of March 14, 1978, did not specify which count the judgment was entered upon, and therefore (c) the judgment was not a final judgment and would not support the issuance of a scire facias. Defendant further alleged that the judgment of March 14, 1978, was invalid because it was entered without notice to the defendant.
Page 418
On March 13, 1981, the trial court took the matter up. Such record as we have indicates counsel were present and were heard at that time. The court entered a judgment of revivor and a partial judgment on the motion to vacate, holding its ruling on the alleged lack of notice in abeyance. Pursuant to Rule 81.06, the court designated these orders final for purposes of appeal. This appeal followed.
The nature and office of the writ of scire facias has been fully developed by our Supreme Court in State ex rel. Silverman v. Kirkwood, 361 Mo. 1194, 239 S.W.2d 332 (banc 1951); Nelson v. Hammet, 343 S.W.2d 75 (Mo.1961), and many other precedents, and need not be developed here. The writ quite often issues as of course without leave of court being first obtained; however, it also serves as first pleading which may be...
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Marriage of Lathem, In re, No. 12508
...is a "special order after final judgment in the cause" and is therefore appealable under the provisions of § 512.020. Moore v. Luna, 626 S.W.2d 417, 418 (Mo.App.1981), and see City of Caruthersville v. Cantrell, 241 S.W.2d 790, 791 (Mo.App.1951). Plaintiff mistakenly assumes that because he......
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Wright v. Martin, No. 13404
...Co., 662 S.W.2d 905, 906 (Mo.App.1983); Todd, supra, 585 S.W.2d at 524; Baumstark, supra, 540 S.W.2d at 612. See also Moore v. Luna, 626 S.W.2d 417, 418 The question to be resolved here is "if a review of the whole record irresistibly compels the conclusion that the fact finder did consider......
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Abbott v. Abbott, No. WD 76525.
...“ ‘appealable under the provisions of [section] 512.020.’ ” Hanks v. Rees, 943 S.W.2d 1, 3 (Mo.App.S.D.1997) (quoting Moore v. Luna, 626 S.W.2d 417, 418 (Mo.App.S.D.1981)). 2. We recognize that the Eastern District relied on the Murphy v. Carron standard of review in Young Electric Sign Com......
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St. Louis Bank v. Kohn, No. ED 104238
...reviving a judgment and lien after the judgment creditor obtained a writ of scire facias pursuant to prior Rule 74.36, Moore v. Luna , 626 S.W.2d 417, 418 (Mo. App. S.D. 1981) ; and a final judgment entered in a garnishment action, Household Fin. Corp. v. Se i gel–Robert Plating Co. , 483 S......
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Marriage of Lathem, In re, No. 12508
...is a "special order after final judgment in the cause" and is therefore appealable under the provisions of § 512.020. Moore v. Luna, 626 S.W.2d 417, 418 (Mo.App.1981), and see City of Caruthersville v. Cantrell, 241 S.W.2d 790, 791 (Mo.App.1951). Plaintiff mistakenly assumes that because he......
-
Wright v. Martin, No. 13404
...Co., 662 S.W.2d 905, 906 (Mo.App.1983); Todd, supra, 585 S.W.2d at 524; Baumstark, supra, 540 S.W.2d at 612. See also Moore v. Luna, 626 S.W.2d 417, 418 The question to be resolved here is "if a review of the whole record irresistibly compels the conclusion that the fact finder did consider......
-
Abbott v. Abbott, No. WD 76525.
...“ ‘appealable under the provisions of [section] 512.020.’ ” Hanks v. Rees, 943 S.W.2d 1, 3 (Mo.App.S.D.1997) (quoting Moore v. Luna, 626 S.W.2d 417, 418 (Mo.App.S.D.1981)). 2. We recognize that the Eastern District relied on the Murphy v. Carron standard of review in Young Electric Sign Com......
-
St. Louis Bank v. Kohn, No. ED 104238
...reviving a judgment and lien after the judgment creditor obtained a writ of scire facias pursuant to prior Rule 74.36, Moore v. Luna , 626 S.W.2d 417, 418 (Mo. App. S.D. 1981) ; and a final judgment entered in a garnishment action, Household Fin. Corp. v. Se i gel–Robert Plating Co. , 483 S......