State ex rel. Silverman v. Kirkwood
| Decision Date | 16 May 1950 |
| Docket Number | No. 27830,27830 |
| Citation | 230 S.W.2d 513 |
| Parties | STATE ex rel. SILVERMAN v. KIRKWOOD, Judge. |
| Court | Missouri Court of Appeals |
J. L. London, St. Louis, for appellant.
Louis B. Sher, St. Louis, Joseph Nessen feld, St. Louis, for respondent.
Relator seeks by mandamus to require the respondent, one of the circuit judges of the City of St. Louis, to assume jurisdiction and take steps to revive a judgment for alimony in relator's favor and against her former husband, Joseph Silverman, now a resident of New Jersey.
On September 29, 1936, the relator was granted a divorce by a decree entered in the circuit court of the City of St. Louis, and, by stipulation of the parties, a judgment for alimony in the sum of $1,500 and the sum of $20 per week from the date of the decree. Thereafter, Joseph Silverman was delinquent as to the payments of alimony, and a dispute arose between Minnie Silverman and Joseph Silverman as to the amount of alimony due under the decree, and on July 1, 1946, by stipulation of the parties, Minnie Silverman accepted the sum of $5,000 in full settlement of her claim under the judgment for alimony down to and including December 31, 1946, since which time the $20 per week alimony has been accruing, less a credit of $100 which relator claims was paid in March, 1947.
The original judgment, as above stated, was entered on September 29, 1936. On September 10, 1946, relator as plaintiff filed a motion in the circuit court of the City of St. Louis for a writ of scire facias to revive her judgment for $20 per week alimony. This was nineteen days prior to the date that the judgment would have been barred by limitation as to revival. This motion was granted and on September 10, 1946, a writ of scire facias was ordered to issue directed to the sheriff of the City of St. Louis, returnable to the December term, 1946. On September 18, 1946, the court, of its own motion, set aside the order of September 10, 1946, and on the same day an affidavit was filed by relator's attorney showing that the defendant in the scire facias proceeding, Joseph Silverman, was then living in Manville, New Jersey. Thereupon, a writ of scire facias to revive the judgment was ordered to issue and a notice was issued by the circuit clerk directed to any officer authorized to serve process in the State of New Jersey, returnable to the December term, 1946, of the circuit court of the City of St. Louis, commanding the judgment debtor to appear on the first day of the next term of court, on the first Monday of December, 1946, to show cause, if any he have, why said judgment should not be revived. On September 23, 1946, the above mentioned notice of the scire facias proceeding was personally served on the defendant in the County of Somerset, State of New Jersey, and proof of such service was filed in the circuit court on October 23, 1946.
On June 6, 1947, on motion of Joseph Silverman, who limited his appearance to the motion, the writ of scire facias and the notice thereof were quashed. On June 26, 1947, the relator by her attorney filed an affidavit that Joseph Silverman was a nonresident of Missouri, and on the same day the court ordered that the judgment debtor be notified by publication returnable forty-five days from July 3, 1947. That order was set aside by the court on July 2, 1947, and a new order was entered on that day and an order of publication was directed returnable to the September term, 1947, of the circuit court. This order of publication was published in the St. Louis Daily Record, and purported to notify the judgment debtor of the scire facias proceedings, and on July 5, 1947, the clerk of the circuit court mailed a copy of that order of publication to Joseph Silverman at Manville, New Jersey. On September 10, 1947, Joseph Silverman, specially appearing for that purpose, filed motion to quash the order of publication, which motion the court sustained on December 22, 1947. Thereafter, on December 31, 1947, on relator's application an order was made that a writ of scire facias issue, but this order was vacated by the court on January 8, 1948. Thereafter, on March 5, 1948, relator orally applied to respondent for a writ of scire facias to revive the judgment of September 29, 1936. Respondent thereupon ordered that a writ of scire facias issue directed to the sheriff of the City of St. Louis returnable to the June term, 1948. A writ of scire facias was issued by the clerk under this order and was returned not found at the June term, 1948. Thereafter, on August 10, 1948, the relator orally moved the court to grant an order of publication, and the court made such order returnable September 27, 1948. This order of publication was published in the St. Louis Daily Record. Thereafter, the defendant, Joseph Silverman, specially appearing for that purpose, moved to quash that writ of scire facias together with the order of publication which was based thereon. That motion was sustained by the court on January 4, 1949. On January 13, 1949, the relator filed a motion praying that the court set aside all orders of court entered in said proceeding, overrule all motions theretofore to quash the services and to order the cause set down for a hearing. That motion was overruled by respondent on May 20, 1949.
On June 19, 1949, relator filed her petition for mandamus against respondent in this court. On September 16, 1949, this court denied the petition for writ of mandamus but thereafter, on October 29, 1949, said order of September 16, 1949, was set aside by this court of its own motion and an alternative writ of mandamus was ordered to issue herein. Respondent's return was duly filed. The facts being of record and not disputed the cause was argued and submitted on the legal questions involved.
It has been said that a writ of 'mandamus' is a hard and fast writ, an unreasoning writ; it is essentially the exponent of judicial power, and hence is reserved for extraordinary emergencies. State ex rel. School Dist. No. 24 of St. Louis County v. Neaf, 344 Mo. 905, 130 S.W.2d 509. It does not issue in doubtful cases, and to be entitled to the writ the relator must show a clear legal right to the relief as prayed for. State ex rel. Huskey v. Eversole, Mo.App., 177 S.W.2d 654; State ex rel. and to Use of Crites v. Short, 351 Mo. 1013, 174 S.W.2d 821.
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. City of St. Louis v. Miller, 235 Mo.App. 987, 145 S.W.2d 504. In this instance the relator as plaintiff saw fit to and did attempt to institute the scire facias proceeding by filing a motion praying therefor in the court where the judgment was originally rendered. It is conceded that when the motion was filed and at all times since Joseph Silverman, the defendant and judgment debtor, was and is a resident of the State of New Jersey. There is no pretense that Joseph Silverman has any property, real or personal, in the State of Missouri. The original case in which the judgment for relator was rendered was a divorce action, and in so far as the divorce was concerned it was an action in rem (the marriage status being the res) but in so far as the judgment for $20 per week alimony was concerned, it was strictly a judgment in personam. Moss v. Fitch, 212 Mo. 484, 111 S.W. 475, 126 Am.St.Rep. 568; Elvins v. Elvins, 176 Mo.App. 645, 159 S.W. 746. The marriage status was ended once and for all (save fraud in the procurement of the decree, which is not in this case), and left the judgment for weekly alimony as one in personam. It was not a lien on anything, until so made by an execution in the hands of the proper officer. Section 1520, R.S.1939, Mo.R.S.A. Sec. 1520; Dreyer v. Dickman, 131 Mo.App. 660, 664, 111 S.W. 616. There was no execution and no property of the judgment debtor over which the court could exercise jurisdiction. And so relator's rights must be considered merely as one who has a personal judgment against a debtor who resides in another state. Has such a judgment creditor a right to proceed by scire facias with an action to revive the judgment on constructive or substitute service? We are cited to no statute or authority conferring such right, while there is a wealth of authority that such service of process will not support a judgment in personam.
The statutes dealing specifically with scire facias are Sections 1271 to 1277, R.S.1939, Mo.R.S.A. Secs. 1271-1277. The mode of service is prescribed by Section 1274 and is that, 'The scire facias shall be served on the defendant or his legal representatives, terre tenants or other persons occupying the land, and be directed to and executed in any county in this state. * * *.' That section is by its wording restricted to a scire facias to revive a judgment and lien on land. The next two sections, 1275 and 1276, provide for publication 'If the defendant cannot be found.' These two sections refer to the service provided in the preceding section, 1274, and have no bearing on a case as we have before us where the purpose is to revive a personal judgment where no land and no property are involved. Of course, this does not mean that a personal judgment cannot be revived on personal service within the state, but it does show that the method of service is not provided for in those sections of the statute.
A judgment creditor has a common law right to revive a judgment except in so far as the above mentioned statutes may control in the revival of a judgment and lien on lands. Hence, we must go to the general statutes of our state to ascertain the method of service in any and all actions, not otherwise provided for, including scire facias. When we do this we find Section 27 of the Civil Code, Laws 1943, p. 366, Mo.R.S.A. Sec. 847.27, which provides for personal service, and Section 28, pages...
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