Simpson v. Watson

• Decision Date: 13 May 1884
• Citation: 15 Mo.App. 425
• Parties: J. H. SIMPSON, Respondent, v. SELMA WATSON, Appellant.
• Court: Missouri Court of Appeals

15 Mo.App. 425

J. H. SIMPSON, Respondent,

v.SELMA WATSON, Appellant.

St. Louis Court of Appeals, Missouri.

May 13, 1884.

APPEAL from the St. Louis Circuit Court, LUBKE, J.

Affirmed.

M. W. WATSON and P. E. BLAND, for the appellant: Scire facias is an action at law triable by a jury.-- Wolff v. Schaeffer, 4 Mo. App. 367; s. c. 74 Mo. 158; Humphrey v. Lundy, 37 Mo. 320. The justice had no jurisdiction.-- Bachelor v. Bess, 22 Mo. 402; Stone v. Corbett, 20 Mo. 354; Webb v. Twadie, 30 Mo. 488; Clark v. Smith, 39 Mo. 498. The validity of the judgment can be inquired into in a scire facias proceeding.-- Corby v. Wright, 4 Mo. App. 443; Eager v. Stover, 59 Mo. 87.

WM. KREITER and J. NIEL, for the respondent: The justice had jurisdiction.-- Meis v. Geyer, 4 Mo. App. 404; Stone v. Corbett, 20 Mo. 350. Jurisdiction of subject-matter and person being complete the judgment can not be avoided in this proceeding.-- Ellis v. Jones, 51 Mo. 186; McNair v. Biddle, 8 Mo. 257.

BAKEWELL, J., delivered the opinion of the court.

This was a scire facias to revive a judgment. The petition alleges that one Robert L. James, on the 12th of February, 1877, recovered judgment in the circuit court of St. Louis county against defendants for the sum of $319.50 with interest and costs. The judgment is then described by the number of the cause and the book and page of the record on which it is recorded. The petition states that this judgment was duly assigned, on the margin of the record, to William Kreiter, for value received, who, for value, afterwards assigned the same, on the margin of the record, to plaintiff; that plaintiff is the legal owner of the judgment, and that no part thereof has been paid. The prayer is that judgment be revived against the defendants.

This petition was filed on the 7th of February, 1882. The return to the scire facias showed that Rogers was not found. At the return term Watson filed his answer, in which, after a general denial, he alleged that the judgment was not a judgment of the circuit court, but of a justice of the peace, and that it was void for want of jurisdiction in the justice. The answer further alleged that Selma Watson, on whom the scire facias had been served, was not the person named in the judgment, and that he had never signed the appeal bond in the cause, and that plaintiff, on the 22d of January, 1882, voluntarily dismissed all proceedings against Rogers, whereby Watson was discharged. A reply was filed denying the new matter.

An alias writ was issued for defendant Rogers, and returned “not found.” On this return an order of publication was granted. Proof of publication was filed at the December term, 1882; but, this proof being insufficient, the court refused to enter a default against Rogers, and the cause was continued, against the objection of Watson. An alias order of publication having been granted, and proof of publication filed, the petition was taken as confessed at the October term, 1883, against Rogers, who made default. The case being regularly called for trial, Watson moved to dismiss on the ground that the cause had been continued without his consent at the December term. This motion was overruled. Watson also objected, that the default against Rogers was taken on insufficient notice, and, that there could be no revivor against Watson without notice to Rogers. This objection was overruled. Watson demanded a jury to try all the issues made by the pleadings. The court denied this application, and a jury was called to try the following issues framed by the court:--

“Did Selma Watson, who is the defendant now here in court, sign the appeal bond taken and approved by Justice John C. H. Cunningham, August 1, 1871, in the cause No. 20,495 of this court, wherein Robert L. James was plaintiff and John B. Rogers, was defendant? Is he the same person who did sign said appeal bond as surety therein?”

Plaintiff then introduced in evidence the record of the judgment in question, together with the assignments as set out in the petition, including the justice's transcript, appeal bond, and executions, and return of nulla bona thereon.

It appears that, on the 25th of July, 1871, Justice Cunningham rendered judgment in favor Robert L. James, against John B. Rogers, for $319.50 and costs, on three negotiable promissory notes, for $50, $100, and $150 respectively, all made by Rogers to the order of Comstock and by him indorsed, all payable at sixty days, all dated on the 14th of December, 1870. Defendant Watson became surety on that appeal bond. In the circuit court, the appeal was not prosecuted, and there was judgment against the appellant and the surety on the appeal bond, for $319.50 and interest and costs.

Defendant Watson then introduced evidence tending to show that he had never signed the appeal bond, and that the signature to the bond was not his. Plaintiff, in rebuttal introduced testimony tending to show that the signature was that of Watson, and that Watson had admitted that he signed the bond when drunk.

An instruction in the nature of a demurrer to the evidence was refused, and the cause was given to the jury on the following instructions, of which the first two were of the court's own motion, and the last at plaintiff's instance:--

“1. The matters submitted to the jury in this court for their verdict are the two propositions stated in the issues which have been read to them. The jury are the sole judges of the weight and effect of the evidence admitted by the court on this trial. They may disregard entirely all the testimony of any witness who they may believe nas wilfully sworn falsely as to any material fact in issue here. And, in their verdict, the jury will say whether on these issues they find for plaintiff Simpson or defendant Watson.”

2. Defendant Watson has in this trial assumed the burden of showing that he did not sign the bond in question.

3. If the jury believe from the evidence that defendant Watson did sign and execute the bond when he was drunk, and had no recollection of the act, yet, such condition of defendant could not operate to discharge his liability on the bond; it is still his act and deed, and the jury should then find for plaintiff on the issues submitted.”

The jury found for plaintiff on both the issues, and the court then made an order reviving the judgment and the lien thereof.

1. It is contended by appellant that the court erred in refusing to appellant a jury to try all the issues made by the pleadings.

Before the adoption of the code of procedure in this state, the right of trial by jury was guarded by the constitutional provision (Const. 1845, Art. XIII., sect. 8), that the right of trial by jury shall remain inviolate. The code provides (Rev. Stats., sect. 3600), that an “issue of fact in an action for the recovery of money only, or of specific, real, or personal property must be tried by a jury, unless a jury trial be waived, or reference ordered.” The constitution of 1875 provides that “the right of trial by jury as heretofore enjoyed shall remain inviolate.” There can be no doubt under these provisions that all issues of fact in an action at law are triable by jury according to the practice of the common law. “There is no doubt,” says Butler, J., in Fenner v. Evans (1. T. R. 267), “but a scire facias is an action; and on that ground it has been held that a plea to a scire facias must conclude, ‘if the plaintiff ought to have and maintain his action.” And so it is held in Missouri that a proceeding by scire facias to revive a judgment is an action, and a suit within the meaning of the words as used in our statutes regulating procedure in courts of justice. Milsap v. Wildman, 5 Mo. 425; Wolff v. Schaeffer, 4 Mo. App. 367. The fact that the writ is a judicial, and not an original writ, and that it has been held, as it is held in some jurisdictions ( Hopkins v. Howard, 12 Tex. 7), that a petition is not necessary to obtain the writ, does not, we think, at all impair the right to have a jury to try such issues as properly arise upon the pleadings, and are triable by jury. Sometimes, and for some purposes no doubt, a scire facias sur judgment is regarded as the continuation of a former suit. 2 Sandf. 71, note 4; Humphreys v. Lundy, 37 Mo. 323. It is true, that in some respects, a scire facias sur judgment is a mere continuation of the cause; yet in others it is a new...