Sutton v. Cole

• Citation: 55 S.W. 1052,155 Mo. 206
• Parties: SUTTON v. COLE et al.
• Decision Date: 14 March 1900
• Court: United States State Supreme Court of Missouri

55 S.W. 1052

155 Mo. 206

SUTTON v. COLE et al.

Supreme Court of Missouri, Division No. 1.

March 14, 1900.

SCIRE FACIAS TO REVIVE JUDGMENT—CHANGE OF VENUE—EVIDENCE—PAROL TESTIMONY— JUDGMENT RECORD—CONTRADICTION.

1. Under Rev. St. 1889, § 6240, giving either party a change of venue in any civil cause before a justice of the peace, etc., it was not error to refuse defendant a change of venue on a scire facias to revive a judgment in the justice court; since a scire facias to revive a judgment is not an original action, but merely a continuation of the former action.

2. Where the docket entry of an action on a note in the justice court showed that the total amount claimed was $283.54, and that judgment was rendered for $283.58, it was error, on a motion to quash an execution issued thereon in the circuit court, to admit parol testimony to show the justice had not exceeded his limited jurisdiction of $150, since such evidence contradicted the record.

Case certified from St. Louis court of appeals.

Action by Robert S. Sutton, administrator, against Thomas A. Cole and others. From a judgment of the St. Louis court of appeals, reversing a judgment of the circuit court in favor of the defendants, the case was certified to the supreme court. Judgment of the court of appeals reversed, and that of the circuit court affirmed.

Chas. Martin and Robt. L. Sutton, for plaintiff. Norton & Avery, for defendants.

MARSHALL, J.

This cause was certified to this court under section 6 of the amendment to the constitution of 1884 by the St. Louis court of appeals, because Biggs, J deemed the opinion of the majority of that court (73 Mo. App. 518) to be contrary to the previous decisions in Milsap v. Wildman, 5 Mo. 425; State v. Hoeffner, 124 Mo. 488, 28 S. W. 1; Walsh v. Bosse, 16 Mo. App. 231; Wolff v. Schaeffer, 4 Mo. App. 367; Kratz v. Preston, 52 Mo. App. 251. The case is this: On the 27th of September, 1881, Martin, administrator of Willhoeft, instituted a suit on a note (date and amount not stated) against Thomas A. Cole, James R. Young, and Andrew Stephens. The docket entry of the justice states, "Total amount claimed, $283.58," and that on the 14th of November, 1881, judgment was rendered for that amount, "with ten per cent. compound interest from date." The plaintiff therein assigned the judgment to the plaintiffs herein, and they, in March, 1895, sued out a scire facias to revive the judgment before the successor to the justice who rendered the original, according to the provisions of section 6288 et seq., Rev. St. 1889. The defendant Cole was duly served with the citation (section 6292, Id.), appeared, and filed an affidavit for a change of venue, which was overruled by the justice, and the judgment revived (section 6293, Id.), and upon the return of the execution nulla bona a transcript of the judgment was filed in the office of the clerk of the circuit court of Lincoln county, and an execution issued thereon from that court, which was levied on the lands of the defendant Cole. He thereupon filed a motion in the circuit court to quash the execution (the motion is not set out, nor its substance stated in the abstract of the record, and therefore we are not advised of the grounds on which it was based), the circuit court sustained the motion, and the plaintiffs properly made up the record, and thereafter sued out this writ of error from the St. Louis court of appeals. The majority of that court held: First, that the judgment for $283.58 was not void on its face, because a justice's jurisdiction, at the time it was rendered, was limited to $150, exclusive of interest (section 2835, Rev. St. 1879); second, that parol testimony was properly admitted by the circuit court in aid of the jurisdiction of the justice to show, the note being lost, that the note was for a sum less than $150, and that the judgment included the principal and interest, compounded annually; and, third, that the application for a change of venue was properly denied by the justice of the peace. The judgment of the circuit court was, therefore, reversed, and the cause remanded. Biggs, J., dissented on the ground that a scire facias to revive a judgment is a civil action, and, being such, the defendant was as much entitled to a change of venue as in any other kind of an action. As the case comes here on the conflict of opinion as to the right of the defendant to a change of venue, that question will be considered first.

1. In Milsap v. Wildman, 5 Mo. 428, scire facias to revive a judgment was held to be an action, and therefore within the proceedings regulating any original action. This case was followed by the St. Louis court of appeals in Wolff v. Schaeffer, 4 Mo. App., loc. cit. 372; Simpson v. Watson, 15 Mo. App., loc. cit. 430; Walsh v. Bosse, 16 Mo. App., loc. cit. 233, 234. But in Humphrys v. Lundy, 37 Mo., loc. cit. 323, it was held, per Holmes, J., that there is "a clear distinction made in the books between an action and a scire facias," and that a scire facias is "only a continuance of a former suit, and not an original proceeding." Hence in that case it was held that the statute of limitations did not apply to such proceedings. In Ellis v. Jones, 51 Mo., loc cit. 187, Sherwood, J., said: "A scire facias to revive a judgment is a judicial writ; is not a new suit, but is a continuation of the original action, and merely ancillary thereto; does not operate to create a new lien, but to continue in force one already in existence; is simply a call or rule upon the debtor to show cause why execution should not issue; and, if no cause is shown, judgment goes that the plaintiff have execution." In Coomes v. Lundy, 57 Mo. 338, the ruling in Humphrys v. Lundy, 37 Mo. 320, in reference to scire facias, was followed, but it was pointed out that the case then before the court was a suit on a foreign judgment, and not a scire facias to revive a judgment, and therefore the statute of limitations applied. This case accentuates the difference between a scire facias to revive a judgment and a new suit. In State v. Hoeffner, 124 Mo. 488, 28 S. W. 1, Burgess, J., said that a proceeding by scire facias upon a forfeited recognizance is a mere continuation of the original proceeding, and hence the defendant is not entitled to a trial by jury. This was in a criminal case, but the learned judge said he had not overlooked Milsap v. Wildman, 5 Mo. 425, and Wolff v. Schaeffer, 4 Mo. App. 367, and, while those cases were not expressly overruled, the case of Humphrys v. Lundy, 37 Mo. 320, above quoted, was extensively quoted from, and clearly followed and approved, for he said, "We think the rule thus announced in harmony with our Code and the understanding of the profession generally." In Kratz v. Preston, 52 Mo. App. 256, Ellison, J., said: "When the object is to revive a judgment, it cannot be said to be a new suit. It is a continuance of the old action, `and merely ancillary thereto,' * * * notwithstanding it partakes of the nature of a new action, as before stated, in that it may be pleaded to. I think it apparent that when the writ is used to revive a judgment it is merely a further proceeding in the same action, and is based on the original judgment, which in this case, we have seen, was rendered on defendant's personal appearance. Such a writ is sometimes called a writ of execution. 2 Tidd, Prac.; Barrow v. Bailey, 5 Fla. 9. It is said in Philips v. Brown, 6 Term R. 282, to be merely a step towards execution on the original demand. And so we know that to be its end and use in practice." The result is that Milsap v. Wildman, 5 Mo. 425, has never been followed by this court, but the contrary doctrine often declared, and that case,...