Stanford v. Utley

• Citation: 341 F.2d 265
• Decision Date: 15 February 1965
• Docket Number: No. 17520.,17520.
• Parties: John Thomas STANFORD, Appellant, v. Everett UTLEY, d/b/a Utley Trucking Company and E. C. Hood, Appellees.
• Court: United States Courts of Appeals. United States Court of Appeals (8th Circuit)

341 F.2d 265 (1965)

John Thomas STANFORD, Appellant, v. Everett UTLEY, d/b/a Utley Trucking Company and E. C. Hood, Appellees.

No. 17520.

United States Court of Appeals Eighth Circuit.

February 15, 1965.

George T. McClintock of Barnett, Montgomery, McClintock & Cunningham, Jackson, Miss., Jack L. Oliver and Allen

L. Oliver of Oliver & Oliver, Cape Girardeau, Mo., and Henley & Fowlkes, Caruthersville, Mo., filed brief for appellant.

Ward & Reeves, Caruthersville, Mo., filed brief for appellee.

Before VAN OOSTERHOUT, BLACKMUN and MEHAFFY, Circuit Judges.

BLACKMUN, Circuit Judge.

In November 1952 plaintiff Stanford instituted a diversity suit against defendants Utley and Hood in the United States District Court for the Southern District of Mississippi. He sought damages for personal injuries to himself and for the wrongful deaths of his wife and minor son in a Mississippi motor vehicle accident. The defendants interposed an answer. Thereafter, upon advice from the defendants' attorneys to plaintiff's counsel that the defendants had no objection, the case was proved as a default pursuant to Rule 55(b) (2), F.R.Civ.P. On April 25, 1956, judgment was entered in the Mississippi federal court in Stanford's favor and against the defendants for $100,000; this consisted of $45,000 for the plaintiff's injuries, $50,000 due to the death of Mrs. Stanford, and $5,000 due to the death of the son. No appeal was taken by either defendant and no payment has ever been made on the judgment.

On April 26, 1956, the day following its entry in the Mississippi court, the judgment was registered in the United States District Court for the Eastern District of Missouri, Southeastern Division, as the parties stipulate, "as provided by" 28 U.S.C. § 1963.

Nothing further happened until August 6, 1963. On that day the plaintiff, pursuant to Rules 69(a), 26 and 30, F.R. Civ.P., filed notice to take the deposition of defendant Utley in Caruthersville, Missouri, for the purpose of discovering assets. Utley moved to quash the notice on the ground that the "judgment is barred under the laws of Mississippi after the expiration of seven years, or April 25, 1963". This motion was sustained by the district court. Stanford appeals.

The issue is whether a federal judgment creditor is entitled to enforcement in a sister state when his judgment is registered in the sister state within the judgment state's limitation period but enforcement is sought later at a time within the registration state's own limitation period but after the expiration of the period of limitations of the judgment state. The point, with its interesting interplay of federal and state statutes, may be one of first impression.

The federal statute, 28 U.S.C. § 1963, first enacted in 1948, reads:

"A judgment in an action for the recovery of money or property now or hereafter entered in any district court which has become final by appeal or expiration of time for appeal may be registered in any other district by filing therein a certified copy of such judgment. A judgment so registered shall have the same effect as a judgment of the district court of the district where registered and may be enforced in like manner."¹

Mississippi has a statute, Miss.Code § 733,² providing that an action on a judgment of a Mississippi court shall be brought within seven years after its rendition and that no execution on it shall issue after that period. The parties have stipulated that "The judgment in question in this suit was not revived in the State of Mississippi".

Missouri has five statutes which may be pertinent. V.A.M.S. § 511.760³ is the Uniform Enforcement of Foreign Judgments Act, adopted in Missouri in 1951. It provides in some detail, and in contrast with the shorter and more peremptory language of § 1963, for the registration of a foreign judgment, the assertion of defenses, and the preservation of the judgment creditor's right to bring an action on his judgment. Section 516.350⁴ presumes payment of a judgment after ten years have expired from its rendition or revival. This is a conclusive presumption and the statute cancels the judgment debt and extinguishes the right of action. Wormington v. City of Monett, 358 Mo. 1044, 218 S.W. 2d 586, 588 (1949). Section 513.015 grants the right of execution. Section 513.020 authorizes execution within ten years after the rendition of the judgment. Section 516.190⁵ is the frequently-encountered comity statute affording a complete defense to a suit in Missouri upon a cause of action barred by the laws of the state where the cause of action originated.

We thus have the interesting situation where there are (a) a 1956 Mississippi federal judgment registered in that year in a Missouri federal court; (b) a seven year Mississippi period of limitations; (c) a ten year Missouri period of limitations; (d) a federal statute providing that a registered judgment "shall have the same effect as a judgment of the district court of the district where registered"; and (e) an effort by the judgment creditor to discover Missouri assets more than seven but less than ten years after the registration of the judgment in Missouri. In these circumstances what is the effect of the registration?

The district court, in its memorandum sustaining the motion to quash, reasoned that, under Klaxon Co. v. Stentor Elec. Mfg. Co., 313 U.S. 487, 496, 61 S.Ct. 1020, 85 L.Ed. 1477 (1941), the conflict of laws rules to be applied by a federal court sitting in Missouri are those prevailing in the Missouri state courts; that Missouri would not permit a suit to be brought in August 1963 on this April 1956 Mississippi judgment because it was then dead under Mississippi law; that registration of the judgment in Missouri in 1956 and prior to its death in Mississippi does not alter the situation; that principles applicable to an action on a foreign judgment are generally applicable to registration; that § 1963 does not require Missouri to apply its own limitation statute when Missouri normally applies the law of the place where the cause of action originated; and that § 1963 does not give the judgment creditor a new judgment but "merely confers ministerial powers on the court in the district in which a judgment is registered".

We, of course, do and must accept the holding of Klaxon, and we recognize that, as the district court observed, a Missouri court would apply the bar of V.A.M.S. § 516.190 to a Missouri suit upon the Mississippi judgment when the action is begun more than seven years after the entry of that judgment. But we are not convinced that these principles, alone and in themselves, provide the answer here. We feel that this case necessarily pivots on the meaning and proper application of § 1963.

The legislative history affords little help. Section 1963 appears to have been the product of a recommendation in 1937 of the Supreme Court's Advisory Committee on Federal Rules of Civil Procedure. See Revisor's Note to 28 U.S.C.A. § 1963. The Committee had proposed Rule 77 with language similar to that of the present statute.⁶ The rule, however, was never adopted. The Supreme Court has not disclosed why it was not adopted, but a possible reason is apprehension that the rule might have affected substantive rights. See 2 Moore's Federal Practice, par. 1.04 2, 1 Barron & Holtzoff, Federal Practice and Procedure (Wright Revision), § 5, pp. 20-21. In any event, the statute was enacted a decade later as a part of the Judicial Code of 1948.⁷

We have concluded that § 1963 is more than "ministerial" and is more than a mere procedural device for the collection of the foreign judgment. We feel that registration provides, so far as enforcement is concerned, the equivalent of a new judgment of the registration court. In other words, for the present fact situation and for enforcement purposes, the Missouri federal registration equated with a new Missouri federal judgment, on the original Mississippi federal judgment, that is, it is no different than a judgment timely obtained by action in Missouri federal court on that Mississippi judgment. It follows from this that the Missouri ten year period of limitations, provided by V.A.M.S. § 516.350, and not the Mississippi seven year period, applies so far as enforcement is concerned, and that execution proceedings by the plaintiff within the Missouri period, and otherwise proper, are not subject to dismissal.

Two cases which are close to the present one are Juneau Spruce Corp. v. International Longshoremen's & Warehousemen's Union, 128 F.Supp. 715 (N.D. Cal., February 1, 1955), and Juneau Spruce Corp. v. International Longshoremen's & Warehousemen's Union, 128 F. Supp. 697 (D.Hawaii, March 1, 1955). Both concerned the same original 1949 judgment of the United States District Court for the District of Alaska, the finality of that judgment by appeal in 1952, and registration (in the Northern District of California and in the District of Hawaii) in December 1954. Alaska statutes provided that the lien of a judgment there lasted for ten years but that execution on a judgment more than five years old should not issue except upon motion, notice, and hearing. The basic issue was whether, because more than five years had elapsed, the Alaska judgment could be registered in California and Hawaii. Each court held that it could and denied a motion to dismiss or quash the execution procedure in the registration state. The courts, however, in their respective opinions used language which, superficially at least, seems not to be in complete agreement. Thus, Judge Goodman, in the California opinion, stated, p. 717 of 128 F.Supp.:

"No matter what the statutes of Alaska may provide as to the issuance of execution there footnote omitted, this is now in effect a judgment of our Court. It may, as provided in § 1963, be here enforced accordingly.

"No limitation provision of California or Federal law stands in the way of enforcing the judgment as registered here."

...