State v. Buford

• Decision Date: 10 June 1929
• Docket Number: No. 16668.,16668.
• Citation: 18 S.W.2d 526
• Parties: STATE ex rel. MEYER v. BUFORD, Clerk of Circuit Court.
• Court: Missouri Court of Appeals

18 S.W.2d 526

STATE ex rel. MEYER v. BUFORD, Clerk of Circuit Court.

No. 16668.

Kansas City Court of Appeals. Missouri.

June 10, 1929.

"Not to be officially published."

Petition by the State of Missouri, on the relation of Alice M. Meyer, for a writ of mandamus to Lynn G. Buford, Clerk of the Circuit Court of Jackson County. Peremptory writ granted.

Paul S. Conwell, of Kansas City, for plaintiff.

James R. Page, Pros. Atty., and John V. Hill, Asst. Pros. Atty., both of Kansas City, for respondent.

LEE, C.

Relator herein filed her petition for a writ of mandamus commanding respondent, as clerk of the circuit court of Jackson county, to issue an execution on a judgment for alimony. Relator and respondent have filed herein their stipulation as to the facts, reading as follows:

"It is stipulated and agreed by the plaintiff and defendant that the facts in the above cause are as follows:

"1. That on December 1, 1914, Alice M. Meyer, as plaintiff, was legally granted an absolute divorce from Theodore Meyer, as defendant, in Division Two of the Circuit Court of Jackson County, Missouri, at Kansas City; that said decree was duly entered on that day and appears on page 222, Book 208, of the records of said Division Two, in the office of the Clerk of said Circuit Court.

"2. That said decree also provides that Theodore Meyer shall pay to Alice M. Meyer the sum of Fifty Dollars per month as alimony, the first payment to begin December 1, 1914, and Fifty Dollars on the first of each succeeding month thereafter until further order of said court.

"3. That said Theodore Meyer paid Alice M. Meyer the sum of Fifty Dollars on or about the first day of each month, as provided in said decree, from December 1, 1914, up to and including June 1, 1928, and has not paid any amount thereon since that date.

"4. That the record of said judgment and decree aforesaid, shows that the aforesaid payments were duly acknowledged and endorsed thereon under date of January 21, 1929, as follows:

"Payment of Fifty Dollars per month made from December 1, 1914 up to and including the month of June, 1928. Last payment made on June 1st, 1928. Alice M. Meyer, Plaintiff, by Paul S. Conwell, Her Attorney.'

"And on the same day, and thereafter, demand was made on the Clerk of said Circuit Court of Jackson County, Missouri for an execution for the unpaid amount due from Theodore Meyer to Alice M. Meyer on account of said judgment and decree; and that said clerk refused to issue the same for the reasons that in his opinion the aforesaid judgment and decree were outlawed.

"5. That due demand was made on said clerk for issuance of said execution after said payments had been acknowledged and endorsed on the record of said judgment."

An alternative writ of mandamus was issued on April 16, 1929, to which respondent filed his return, setting up that the peremptory writ should not issue, for the following reasons, to wit:

"1. The judgment upon which plaintiff seeks an execution to enforce was rendered under date of December 1, 1914.

"2. The judgment was never revived by scire facias, as provided by Section 1557, Revised Statutes Missouri, 1919.

"3. Under date of January 21, 1929, more than fourteen years after rendition of judgment, plaintiff sought to satisfy the judgment in part by writing the following notation on the margin of the judgment record, as follows: `Payment of Fifty Dollars per month made from December 1, 1914, up to and including the month of June, 1928. Last payment made on June 1st, 1928. Alice M. Meyer, plaintiff, by Paul S. Conwell, her attorney.'

"4. The judgment is dormant and under the provisions of Section 1564, Revised Statutes Missouri, 1919, there can be no execution, and said judgment can not be revived for the reason that more than ten years have elapsed since the rendition thereof."

The judgment was admittedly 14 years old when execution was demanded, and no scire facias had ever been issued. Section 1564, R. S. Mo. 1919, provides: "Executions may issue upon a judgment at any time within ten years after the rendition of such judgment."

Respondent contends that a judgment for alimony is subject to the same limitations and incidents as any other judgment, and that relator's right to demand an execution is conclusively barred by this statute. This is undoubtedly true unless other provisions of the statute provide an exception, which relator contends is found in section 1341, R. S. Mo. 1919. This section reads as follows: "Every judgment, order or decree of any court of record of the United States, or of this or any other state, territory or country, shall be presumed to be paid and satisfied after the expiration of ten years from the date of the original rendition thereof, or if the same has been revived upon personal service duly had upon the defendant or defendants therein, then after ten years from and after such revival, or in case a payment has been made on such judgment, order or decree, and duly entered upon the record thereof, after the expiration of ten years from the last payment so made, and after the expiration of ten years from the date of the original rendition or revival upon personal service, or from the date of the last payment, such judgment shall be conclusively presumed to be paid, and no execution, order or process shall issue thereon, nor shall any suit be brought, had or maintained thereon for any purpose whatever."

In the case of Dreyer v. Dickman, 131 Mo. App. 660, 111 S. W. 616, cited by respondent, the judgment had been rendered in May, 1894. No execution was demanded until November, 1904, after the full 10 years had...