State ex rel. Silverman v. Kirkwood

• Decision Date: 09 April 1951
• Docket Number: No. 42173,42173
• Citation: 239 S.W.2d 332,361 Mo. 1194
• Parties: STATE ex rel. SILVERMAN v. KIRKWOOD, Judge.
• Court: Missouri Supreme Court

Page 332

239 S.W.2d 332

361 Mo. 1194

STATE ex rel. SILVERMAN v. KIRKWOOD, Judge.

No. 42173.

Supreme Court of Missouri, en Banc.

April 9, 1951.

Rehearing Denied May 14, 1951.

J. L. London, St. Louis, for relator.

Louis B. Sher, Joseph Nessenfeld, St. Louis, for respondent.

CONKLING, Judge.

Mandamus. Upon application of the relator (Minnie Silverman) we ordered this cause transferred here from the St. Louis Court of Appeals. The principal opinion of that court, 230 S.W.2d 513, seems to hold that neither personal service in a foreign state of a writ of scire facias issued by the circuit court in the city of St. Louis (the court of the original judgment) nor constructive service of such writ by publication were sufficient to give the court of original judgment the jurisdiction of the person necessary to revive a personal judgment against the original judgment debtor.

The facts of the case are stated in such detail in 230 S.W.2d 513 et seq., that it is not required that we here restate such facts at length. But that opinion should be read in connection with the disposition we here make of this cause.

Briefly, the relator seeks to revive a judgment for alimony originally entered September 29, 1936, against Joseph Silverman. That judgment provided for payment of $20.00 per week after that date. The amount due under the judgment and which accrued prior to Dec. 31, 1946, is not here involved. The amount now sought to be recovered is the sum which relator claims has accrued since December 31, 1946. On September 10, 1946 relator by motion, in the original court and cause, moved for the issuance of a writ of scire facias to revive the 1936 alimony judgment. The scire facias was that day ordered issued and to be directed to the Sheriff of the City of St. Louis. On September 18, 1946 that above mentioned order was set aside of the court's own motion and a new order was entered directing the scire facias to be issued directed to any officer authorized to serve process in New Jersey. The notice and writ ordered on September 18, 1946 was issued and the writ was personally served on the original judgment debtor in the state of New Jersey on September 23, 1946 by an officer authorized to serve process in civil actions in that state. The judgment debtor had no property of any kind in Missouri. Thereafter, upon motion of Joseph Silverman (who limited his appearance to that purpose), the court of the original judgment quashed the last above mentioned writ and notice. Thereafter upon relator's request, the court of original judgment again issued a writ of scire facias and made an order of publication with respect thereto. Such publication was made. Thereafter that writ, and the publication thereof, upon motion of Joseph Silverman was quashed. Thereafter the trial court overruled relator's motion praying the court to set aside all orders quashing the writs, notices and the publication. Upon relator's application, the Court of Appeals thereafter issued its writ of mandamus requiring the respondent circuit judge to assume jurisdiction and to proceed to revive the judgment. After opinion of that court in that cause we ordered this transfer.

The question here presented for our ruling is whether in revivor proceedings the statutes of this state authorize either personal service or service by publication if the original judgment debtor resides without the state at the time of the attempted revivor, and for that reason the scire facias writ cannot be served within the State of Missouri.

A proceeding by the issuance of a writ of scire facias to revive a judgment is not a new action. It is not even an 'action' within the legal meaning of the word. Hickox v. McKinley, 311 Mo. 234, 247, 278 S.W. 671. It is mere 'special proceeding' in continuance of and ancillary to the former suit in which the judgment was obtained. It is but supplementary to aid in the recovery of the debt evidenced by the original judgment. Upon scire facias proceedings the court cannot inquire into the merits of the original judgment. There can be no change of venue in scire facias. Sutton v. Cole, 155 Mo. 206, 55 S.W. 1052. In Missouri the judgment upon scire facias proceedings is not a new judgment but merely extends the life of the old judgment and authorizes execution to issue. A scire facias proceeding is one wherein the judgment debtor may come into court and file a pleading wherein he may show cause, if any he has, why the original judgment should not be revived. But it is not a new action in any sense. Scire facias is not limited to the preservation of a lien. 'It is designed to revive the judgment itself and give it a new vitality.' Goddard, to Use of Hyde v. Delaney, 181 Mo. 564, 571, 80 S.W. 886, 887. If the writ of scire facias is issued prior to the expiration of the ten years from date of the judgment, the order of revival may be made after the expiration of such ten year period. In re Jackman's Estate, 344 Mo. 49, 124 S.W.2d 1189; State ex rel. Buder v. Hughes, 350 Mo. 547, 166 S.W.2d 516, 519; State ex rel. Silverman v. Kirkwood, Mo.App., 230 S.W.2d 513, 519, and cases there cited in Judge Anderson's separate concurring opinion. The cited case of Union Bank of Wichita v. Lamb, 360 Mo. 81, 227 S.W.2d 60, ruled only upon the effect of the Colorado statutes of revivor and is not authoritative upon any question now before us. We are here considering the Missouri statutes. And our Rule 3.02(f) is not determinative here. It was adopted prior to the effective date of what is now R.S.Mo.1949, Sec. 506.160, as Sec. 28 of our Code, Laws Mo.1943, p. 367, was amended by Laws Mo.1945, p. 640. In any event that rule but declared the meaning of the word 'term' as used in Sec. 1274, R.S.Mo.1939, now Sec. 511.400, R.S.Mo.1949.

It may be conceded, as of course, that in an action filed in this state to recover a general personal judgment against a nonresident of this state, that neither personal service upon the defendant in a foreign state nor service by publication under the provisions of R.S.Mo.1949, Sec. 506.160, will authorize the rendition of a general personal judgment. But no such question is here before us.

The Missouri circuit court had jurisdiction of the person of Joseph Silverman in the original divorce action in which the original personal judgment was entered on September 29, 1936. But at the time of the issuance of the writ of scire facias to revive that judgment Joseph Silverman was a resident of New Jersey, had no property of any kind in Missouri, and could not be personally served in Missouri. He was personally served with the scire facias writ and notice in New Jersey. Service was also had by publication. Limiting his appearance to the purposes of his motion, he appeared in the court of original judgment and successfully moved that court to quash the writ of scire facias and the publication. Do our statutes permit him to thus avoid the effect of the original general personal judgment? They do not.

The principal opinion of the Court of Appeals seems to reach its conclusion by ignoring the rule of the Missouri cases (which are in accord with the weight of authority) that a scire facias proceeding is a continuation of and is but supplementary to the action in which the judgment sought to be revived was rendered and that such proceeding is not of itself an original action. The writ of scire facias is a judicial writ, Peak v. Peak, Mo.Sup., 181 S.W. 394, 395. It is not an original writ such as a summons. A proceeding by scire facias for the single purpose of reviving and continuing the force of a judgment theretofore rendered is not even a proceeding in personam. But the effect of an order of revivor is to vitalize and make subject to execution a general personal judgment theretofore entered. A scire facias proceeding is only a special proceeding by judicial writ in the original action. Its sole purpose is to give the judgment debtor an opportunity to appear and show cause (if he has any) why the order of revivor should not be entered. In ruling the question before us we cannot overlook the basic principle that the suing out of a scire facias writ is not a new action but is only a special proceeding by judicial writ and a continuation of the cause in which the original judgment was entered. That principle compels the conclusion we reach and our disposition of the question instantly here.

Sec. 28 of our Civil Code, as amended by Laws of Mo.1945, p. 640 to 643 (now R.S.Mo.1949, Sec. 506.160) was considered in the principal and concurring opinions of the Court of Appeals. That section, in subsection 1, in part, provides that 'Service by mail or by publication shall be allowed', (in certain named instances) 'or in any special proceedings in which notice by mail or by publication is authorized, including but not limited to actions to quiet title and actions to ascertain and determine title to real estate.' That subsection further provides, '* * * but such service shall not warrant a general judgment against such defendant.' Note that the statute states 'any special proceedings'.

Is a scire facias proceeding a 'special proceeding', and is it a 'special proceeding in which notice by mail or by publication is authorized' as those words are used in Sec. 506.160?...