White Industries, Inc. v. New England Propeller Service, Inc., WD

• Decision Date: 16 August 1994
• Docket Number: No. WD,WD
• Citation: 881 S.W.2d 243
• Parties: WHITE INDUSTRIES, INC., Respondent, v. NEW ENGLAND PROPELLER SERVICE, INC., Appellant. 48487.
• Court: Missouri Court of Appeals

Page 243

881 S.W.2d 243

WHITE INDUSTRIES, INC., Respondent, v. NEW ENGLAND PROPELLER SERVICE, INC., Appellant.

No. WD 48487.

Missouri Court of Appeals Western District.

Aug. 16, 1994.

Ronald G. Byers, Independence, for appellant.

James R. Hall, Oak Grove, for respondent.

Before SMART, P.J., and KENNEDY and ULRICH, JJ.

PER CURIAM.

This case involves an appeal from an order of the trial court sustaining a motion to revive a money judgment obtained in 1982. New England Propeller Service, Inc., defendant, appeals from the trial court's order of revival in favor of White Industries, Inc., plaintiff.

On April 19, 1982, plaintiff obtained a default judgment against defendant for $6,035.60 and costs. On March 18, 1992, plaintiff mailed a motion to revive judgment to the court. The cover letter referred to a proposed order, which was also enclosed, according to the cover letter. On March 20, the motion to revive was filed. No previous revival was on record.

Plaintiff did not communicate further with the court regarding the motion until the Spring of 1993, when plaintiff was contacted by the court clerk. After the telephone conversation, plaintiff sent a proposed order with another cover letter to the court. On July 7, 1993, the court issued an order directing defendant to appear and show cause why the judgment should not be revived. The show cause order was served on defendant on July 27, 1993. Defendant filed a motion to quash service on July 30, 1993. Defendant challenged the timeliness of plaintiff's efforts to revive the judgment.

Plaintiff argued the motion to quash should be denied, claiming that the fifteen month delay between the time the motion to revive was filed and when the clerk of court contacted plaintiff was due to an oversight by the Clerk of Court, or other neglect not on the part of plaintiff. Plaintiff's counsel further claimed that he had done all that he was required to do in a timely manner.

On September 2, 1993, the trial court denied defendant's motion to quash, finding that "the motion was timely filed and the order may or may not have been filed and the fault may well lie with the Court." Defendant filed a motion to set aside the prior order, which was declined by the court on September 16. Defendant appeals from the trial court's order.

The sole point raised on appeal is that the trial court erred in denying defendant's motion to quash and in granting plaintiff's motion to revive, because the undisputed facts of record are that defendant was served with the order to show cause why the judgment should not be revived no earlier than 11 years and 3 months after the entry of the judgment and that the delay between the filing of plaintiff's motion to revive the judgment in March 1992, and service of the order to show cause on defendant in July 1993, was due to plaintiff's unexcused neglect of the matter, so that the judgment should have been irrebuttably presumed to have been paid and satisfied pursuant to § 516.350, RSMo 1986.

Missouri law provides in § 516.350, that a money judgment is irrebuttably presumed paid and satisfied ten years after the judgment's original rendition, unless it has been revived. This section applies to all money judgments except for child support or maintenance. The record shows in this case that only one attempt to revive the judgment was made. Rule 74.09 sets forth the procedure for the revival of judgments and provides in pertinent part:

(a) When and by Whom. A judgment may be revived by order of the court that entered it pursuant to a motion for revival filed by a judgment creditor within ten years after entry of the judgment or the last prior revival of the judgment.

(b) Order to Show Cause. Upon the filing of a motion of revival of a judgment, an order shall issue to the judgment debtor to show cause on a day certain why such judgment should not be revived. The order to show cause shall be served pursuant to Rule 54 on the judgment debtor, his successors in interest, or his legal representatives.

* * * * * *

(Emphasis added). Plaintiff's counsel relies on the above highlighted language in asserting that he did all that he needed to do in order to revive the judgment. To fully comprehend plaintiff's argument it is necessary to set forth and discuss Rule 74.36, the rule which Rule 74.09 replaced.

The procedure for reviving a judgment was different before the enactment of Rule 74.09 on January 1, 1988. Rule 74.36 governed the procedure for reviving a judgment prior to 1988 and the text of that rule provided:

The plaintiff or his legal representative may, at any time within ten years, sue out a scire facias to revive a judgment and lien; but after the expiration of ten years from the rendition of the judgment no scire facias shall issue. The scire facias may be in the form of an order to show cause issued on motion ex parte by the clerk or judge of the court.

Plaintiff argues that since the legislature eliminated the phrase "sue out a scire facias " and replaced this requirement with "upon the filing of a motion of revival of a judgment, an order shall issue," he has no further duty or obligation to proceed with the matter beyond the filing of a motion to revive. Essentially, Rule 74.09 indicates that court personnel will issue the order to show cause. Plaintiff's counsel argues he was justified in not taking any action between the time he filed the motion to revive on March 20, 1992 and the time he was contacted by the court some fifteen months later.

The cases interpreting the old rule imposed a requirement of due diligence in reviving a judgment. In Driscoll v. Konze, 322 S.W.2d 824 (Mo.1959), a judgment debtor filed a motion for scire facias within the ten year limitation period. Personal service could not be obtained on the defendant and service by publication was ordered after the expiration of the limitation period and the judgment was eventually revived. Several years later, plaintiff tried to execute on the judgment and defendant filed a motion to quash which was sustained by the trial court and affirmed on appeal. The Supreme Court held that the earlier revival was void because service by publication was not done properly. Plaintiff then allowed thirteen months to elapse before moving for an alias scire facias to revive the judgment. The motion was quashed and plaintiff again appealed. The Supreme Court affirmed, holding that plaintiff had failed to exercise due diligence by waiting thirteen months before filing his motion. The Court reasoned that:

Although statutes of limitations are satisfied when a suit is commenced prior to the running of the statute by filing a petition and having a summons issued thereon, there nevertheless may be such delay and lack of diligence in the issuance of other proper process as to cause a discontinuance of a properly instituted action, and thus a period of limitations which expires in the meantime will be an effective bar to the continuation of the action.

Id. at 828. The Court discussed the ten...