Tatum v. Davis

• Decision Date: 11 September 1922
• Docket Number: 5990.
• Citation: 283 F. 948
• Parties: TATUM v. DAVIS.
• Court: U.S. Court of Appeals — Eighth Circuit

283 F. 948

TATUM v. DAVIS.

No. 5990.

United States Court of Appeals, Eighth Circuit.

September 11, 1922

Sam B Strother and Spurgeon L. Smithson, both of Kansas City, Mo and Vinton Pike, of St. Joseph, Mo., for plaintiff in error.

Benjamin Phillip, of St. Joseph, Mo. (Culver, Phillip & Voorhees, of St. Joseph, Mo., on the brief), for defendant in error.

Before LEWIS and KENYON, Circuit Judges, and JOHNSON, District Judge.

LEWIS Circuit Judge.

This action of debt was begun by plaintiff in error in November 1919. It is founded on a judgment of a Missouri Circuit Court, rendered in January, 1908, in a divorce case between the parties, by which the bonds of matrimony then existing were dissolved, and defendant in error, who was defendant there, was adjudged to pay to the plaintiff in error $200 per month on the first day of each month, beginning on February 1, 1908, as alimony for the support of herself and two minor children, and that she have execution therefor. In October following, plaintiff in error married, and has since lived with B. B. Tatum, of Miami, Florida, as his wife. After the marriage defendant in error began some proceeding in the State circuit court to modify the divorce decree respecting the custody of the minor children and allowance of alimony, on the ground that plaintiff had remarried and was about to remove the children from the jurisdiction of the State court. Upon hearing, the State court modified the decree and took from plaintiff the custody, care and control of the children, from which order she prosecuted an appeal to the Kansas City Court of Appeals, and said order was reversed by the appellate court, on April 4, 1910. That court dealt only with the question of the custody of the children. None of the installments of alimony has been paid and no execution was ever issued for their collection, nor was that judgment ever revived, as might have been done under the State practice. After the decree of divorce plaintiff supported the children until her remarriage, and since then Mr. Tatum has cared for her and them. In this action a recovery of all accrued installments and interest thereon is sought. A jury was regularly waived, the court made a special finding of facts, which have been stated, and then sustained the defenses of statutory presumption of payment, and limitation.

No complaint is made of rulings during the progress of the trial, so the only question here is, whether the facts found are sufficient to support the judgment against plaintiff in error. Rev. St. Secs. 649, 700 (Comp. St. Secs. 1587, 1668); Webb v. Bank, 146 F. 717, 77 C.C.A. 143; Guaranty Trust Co. v. Koehler, 195 F. 669, 115 C.C.A. 475; Eastern Oil Co. v. Holcomb, 212 F. 126, 128 C.C.A. 642.

The trial court held that the State statute relied upon by the defendant in his answer as his only defenses prevented a recovery. As amended in 1899 (Laws 1899, p. 300) it reads:

'Every judgment, order or decree of any court of record of * * * this * * * state, * * * 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.'

As will be at once observed, the statute is not only one of limitation, but it also establishes a rule of evidence. It declares in plain and unmistakable terms that a lapse of ten years from the date of rendition, or revival, or last payment entered upon the record thereof, is both a bar to the bringing of any suit thereon for any purpose whatever and also a conclusive presumption of payment. It is argued that the statute does not apply because the alimony was not in gross and payable and recoverable at once, but in monthly installments, and that the obligation to pay and the right to collect did not accrue until each installment separately became due, and that only a small part of them fell due more than ten years before the bringing of this action. It is not claimed that...