Union Nat. Bank of Wichita, Kan. v. Lamb

• Decision Date: 13 February 1950
• Docket Number: No. 1,No. 40684,40684,1
• Citation: 227 S.W.2d 60,360 Mo. 81
• Parties: UNION NAT. BANK OF WICHITA, KANSAS, v. LAMB
• Court: Missouri Supreme Court

Page 60

227 S.W.2d 60

360 Mo. 81

UNION NAT. BANK OF WICHITA, KANSAS, v. LAMB.

No. 40684.

Supreme Court of Missouri, Division No. 1.

Feb. 13, 1950.

Maurice J. O'Sullivan, John G. Killiger, Jr., Kansas City, for appellant.

Cornelius Roach, Daniel L. Brenner, Wilfred Wimmell, Fred L. Howard, Kansas City, for respondent.

DALTON, Judge.

Action on a Colorado judgment. The cause was tried to the court without the aid of a jury and judgment was entered for defendant. After a motion for a new trial had been filed and overruled, plaintiff appealed. This court affirmed the judgment. Union Nat. Bank of Wichita, Kansas, v. Lamb, Mo.Sup., 213 S.W.2d 416.

Appellant, thereafter, appealed to the Supreme Court of the United States and that court treated 'the papers as a petition for certiorari,' granted it and reversed the judgment of this court. Union Nat. Bank of Wichita, Kansas, v. Lamb, 337 U.S. 38, 69 S.Ct. 911, 93 L.Ed. ----. The cause has been re-argued and resubmitted in this court.

We adopt, with slight modification, appellant's original statement of facts, as follows: 'The petition filed December 13, 1945, alleged and by his answer defendant admitted that plaintiff recovered judgment against him upon personal service on December 8, 1927, in the District Court for the Second Judicial District of Colorado, for $3493.01 and costs, which was revived by order of said court on October 27, 1945. Defendant denied that personal service was had upon him on October 15, 1945, of notice of and a copy of the motion to revive, as said order of revivor recites. He alleged that nothing was due on said judgment when the order of revivor was entered on October 27, 1945, but the same had been paid in full and was satisfied on December 9, 1937, and that any recovery thereon was barred by the limitation prescribed by Sec. 1038, R.S.1939, Mo.R.S.A.

'The petition averred that the judgment and order of revival conformed to and was authorized by Chap. 93, Sec. 2, 1935 Colorado Statutes Ann., and that under the statutes above mentioned and Chap. 88, Sec. 2 thereof as amended effective March 7, 1935, that plaintiff was entitled to execution under the laws of Colorado to enforce payment of said judgment in the sum of $3493.01, with simple interest thereon at 8% per annum from December 8, 1927 to March 7, 1935, and thereafter until paid at the rate of 6% per annum upon the original sum, together with cost of $9.00 assessed thereon. It prayed for recovery accordingly, with costs, and that the same full faith and credit be accorded thereto in this State as provided by Sec. 1864, R.S.Mo. 1939, Mo.R.S.A., as said judgment and order of revivor was entitled to have and would be given under the laws of Colorado.

'A copy of the original judgment and of the order of revivor duly certified in conformity with 28 U.S.C.A. Sec. 687 [revised Sec. 1738], and Sec. 1864, R.S.Mo.1939, Mo.R.S.A., attached to and made a part of the petition, was duly offered in evidence. * * * Answers to interrogatories and admissions and stipulations of counsel established that defendant was not in Colorado in 1945, and that he then resided in Kansas City, Missouri. On October 15, 1947, a Deputy Sheriff of Jackson County personally served defendant in Kansas City, Missouri, with a notice of filing Motion to Revive Judgment and with a copy of the Motion to Revive Judgment and about the same time copies of both instruments were delivered to him in Kansas City, Missouri, by registered mail. He admitted that nothing had ever been paid to apply on the judgment of December 8, 1927. He did not appear nor plead to the Motion to Revive.'

Additional facts should be stated. The judgment sued on was pleaded as follows: 'Attached and made part hereof is a duly certified copy * * * of a judgment duly rendered in the exercise of its jurisdiction by said District Court * * * wherein the plaintiff herein duly recovered judgment against defendant on December 8, 1927, for $3493.01 and costs, and of an order and judgment of said court in the exercise of its jurisdiction duly made and entered in said cause on October 27, 1945, which adjusted that no part of said judgment or costs was ever paid or satisfied and ordered, adjudged and decreed that said judgment of December 8, 1927 for $3493.01 and costs in favor of plaintiff and against defendant be and the same was revived.'

The judgment of revival stated with reference to the prior judgment: '* * * that said judgment, the principal amount due thereon, and all costs and interest thereon, are wholly unpaid and unsatisfied and that no part thereof has ever been paid or satisfied: Now, therefore, be it and it is hereby ordered, adjudged and decreed, that the judgment entered against the defendant in the above entitled cause on the 8th day of December 1927, be, and the same is hereby revived.'

As stated, defendant's answer admitted the entering of the original judgment on December 8, 1927, and 'that on the 1st day of December, 1945, an order of revivor of said judgment * * * was entered * * *' but denied 'that the motion to revive said judgment was served on defendant by personal service.' Defendant further pleaded that the original judgment was 'barred by the Statutes of Limitations in force and effect in the State of Missouri,' Sec. 1038, R.S.1939, Mo.R.S.A.

On trial, counsel for plaintiff advised the court that the only issue involved was 'the matter of the effect to be given in the State of Missouri to this revived Colorado judgment' and the parties then stipulated that 'the only service on the revival proceedings * * * in 1945 * * * were by service of notice and a copy of the motion to revive delivered to Mr. Lamb in Kansas City, Missouri, one by registered mail and the other by service by a Deputy Sheriff of Jackson County, Missouri.' The original judgment and judgment of revival were received in evidence over defendant's objections based on Sec. 1038, R.S.1939, Mo.R.S.A., and upon the fact the revival was 'upon substituted personal service.' The trial court took the case under advisement and thereafter entered judgment for defendant.

In reversing the judgment of this court, which affirmed the judgment of the trial court, the Supreme Court, 69 S.Ct. 911, 913, said: 'It is plain that the Missouri court held that, whatever the effect of revivor under Colorado law, the Colorado judgment was not entitled to full faith and credit in Missouri. That holding is a ruling on a federal question and it cannot stand if, as assumed, the Colorado judgment had the force and effect of a new one.' The court further said: 'But since the status of the 1945 judgment under Colorado law was not passed upon by the Missouri court, we do not determine the question. For the same reason we do not consider whether the service on which the Colorado judgment was revived satisfied due process. See Owens v. Henry, 161 U.S. 642, 16 S.Ct. 693, 40 L.Ed. 837. Both of those questions will be open on remand of the cause.' The court further pointed out that the integrity of a foreign judgment could not be impaired, 'save for attacks on the jurisdiction of the court that rendered it.'

This cause was tried to the court without the aid of a jury and we are governed in our review by Sec. 114(d), Laws 1943 p. 388, Mo.R.S.A. Sec. 847.114(d), as follows: 'The appellate court shall review the case upon both the law and the evidence as in suits of an equitable nature. The judgment shall not be set aside unless clearly erroneous, * * *.'

Appellant now contends that neither of the two questions mentioned in the Supreme Court opinion are in issue or properly subject to determination on this appeal; and that, on the pleadings and evidence, 'plaintiff was entitled to judgment according to the prayer of its petition as a matter of law.' Whether the judgment sued on was barred by Sec. 1038, supra, and whether the 'order of revivor of said judgment' was upon such personal service as would satisfy due process were issues of law for the court. The facts being admitted by the pleading or stipulated before the court, the proper judgment to be rendered was a mere legal conclusion. Rivard v. Missouri Pacific R. Co., 257 Mo. 135, 157, 169, 165 S.W. 763; Cox v. Sloan, 158 Mo. 411, 429, 57 S.W. 1052; Stanton v. Leonard, 344 Mo. 998, 130 S.W.2d 487, 488. We think it was conceded below that both issues were raised and were to be passed upon in the trial court. Appellant's original brief recognized these issues as follows: 'The cases cited rule that a judgment of revival is merely a continuation of the original action and that if the court had jurisdiction of the person when the original judgment was rendered, that any reasonable notice to defendant satisfies the due course and process of law and that such judgments of revival are entitled to full faith and credit. The judgment of revival is a remedy for avoidance of the statute of limitations, and to avoid a presumption of payment from lapse of time. The judgment of revival orders, adjudges and decrees that the judgment entered against the defendant on December 8, 1927, be and the same is hereby revived. This form of judgment continues the effect of and provides for execution upon the original judgment. It is a continuation of the original action. It is enforcible for all purposes in Colorado, under the laws of that State, which were duly pleaded under Missouri Civil Code, Sec. 847.54, Mo.R.S.A. It is clearly distinguished from the new judgment rendered as in an action for debt under the Pennsylvania law, with which the court had to deal in Owens v. McCloskey, Ex'r, of Henry, 161 U.S. 642, 16 S.Ct. 693, 40 L.Ed. 837.' (Italics ours).

In order to determine whether the judgment sued on was barred by the applicable statute of limitations in this state we must determine whether under Colorado law the 1945 Colorado judgment was a new judgment or whether the revivor did no more than to extend the statutory period in which to enforce the old...