Wonderly v. Lafayette County

• Decision Date: 15 June 1896
• Citation: 74 F. 702
• Parties: WONDERLY v. LAFAYETTE COUNTY.
• Court: U.S. District Court — Western District of Missouri

74 F. 702

WONDERLY v. LAFAYETTE COUNTY.

United States Circuit Court, W.D. Missouri.

June 15, 1896

Christian & Wind, for plaintiff.

J. M Lewis and Elijah Robinson, for defendant.

PHILIPS District Judge.

On the 31st day of October, 1885, Francis D. Owings recovered a judgment in this court against Lafayette county on account of railroad aid bonds issued on behalf of Sni-a-bar township, in said county, for the sum of $11,791.45 and costs. On the 28th day of November, 1885, said Owings assigned and transferred said judgment to Charles P. Wonderly. This judgment remaining unsatisfied on the 25th day of October, 1895, said Wonderly caused to be sued out of the clerk's office of this court a scire facias against Lafayette county to revive said judgment. On the return day of said writ the defendant appeared, and filed demurrer thereto.

The first question raised by the demurrer is that the application for and the writ should be in the name of the assignee of the judgment, Charles P. Wonderly, instead of Francis D. Owings the assignor. It may be conceded to defendant that under the Code authorizing the prosecution of actions in the name of the real party in interest the proceeding could be had in the name of the assignee with appropriate recitation in the writ of the fact of assignment. It is also true that the application filed herein for the writ is entitled in the caption 'Francis D. Owings, to the use of Charles P Wonderly,' but it is the recognized rule that no complaint or formal petition is essential as the predicate of the writ. The writ itself, when issued, performs the 'double purpose of a writ and a declaration.' 2 Freem.Judgm. § 444; Insurance Co. v. Hill, 17 Mo.App. 590. There never was any requirement in the practice act of this state that a petition should be filed in order to sue out the writ of scire facias, until the act of February 15, 1865 (Sess. Acts 1865, p. 46); Ellis v. Jones, 51 Mo. 187. As the provision of this act has since been dropped from the Revised Statutes, it no longer has any application in practice. So it is sufficient if the writ itself shows it was issued on behalf of and to the use of the assignee of the judgment. The writ itself, after reciting the recovery of the judgment, alleges its assignment and transfer to Charles P. Wonderly; and then proceeds as follows:

'Now, on behalf of the said Charles P. Wonderly, assignee of said judgment as aforesaid, it is suggested and made to appear to the said court that, although judgment therein was given, yet neither the said Francis D. Owings nor said Charles P. Wonderly, assignee, have received satisfaction of the debt, damages, costs, and charges awarded in and by said judgment; wherefore the said Francis D. Owings, for the use of said Charles P. Wonderly, assignee, has asked of us that a proper remedy be granted him in his behalf,' etc.

Then the command of the writ is to Lafayette county to show cause, if any, why said judgment, etc., 'should not be revived according to the force and effect of said judgment, to the use of the said Charles P. Wonderly, assignee, and further to do and receive what our said court shall then determine concerning it in this behalf. ' I think the reasonable intendment of the writ is that it is designed to revive the judgment on behalf of the assignee. And, inasmuch as it is permissible for the writ in mere matter of form to be amended (Freem. Judgm., supra), the court will allow the plaintiff here to amend the writ by striking out the words 'Francis D.

Owings, to the use of,' where they occur as above recited in the writ.

The other grounds of objection to the writ are more serious. The first contention of defendant is that, as the judgment in question is predicated of bonds issued in aid of subscription by a township in the defendant county to be paid by a levy of the county court on the assessable property within the township, there never was any lien created on the property of defendant; and that, as the object of the revival by a scire facias is to continue the lien and enforce the judgment by execution, no scire facias can issue alone to revive the judgment. The state statute (section 6013) declares that:

'The plaintiff, or his legal representatives, 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.'

So the statute expressly authorizes the suing of the writ to revive a judgment 'at any time within ten years. ' The words 'and lien' do not imply that the writ to revive the judgment is made to depend upon the existence of a lien. As said by Judge Thompson in Insurance Co. v. Hill, 17 Mo.App. 592:

'The object of the proceedings by scire facias may be twofold: First, to preserve the lien on the property of a debtor; second, to prevent the judgment becoming barred by the statute of limitation.'

2 Freem.Judgm. § 442, says:

'Though the plaintiff's right to an execution still continues, and a revival by scire facias has not yet become necessary, and even while an execution is still in the hands of a sheriff, the plaintiff may sue out scire facias, and thereby revive his judgment.'

The text is well supported by the authorities. Lambson v. Moffett, 61 Md. 426; Masterson v. Cundiff, 58 Tex. 472; Trapnall v. Richardson, 13 Ark. 543; Stille v. Wood, 1 N.J.Law, 118. The discussion in Lambson v. Moffett, supra, meets quite effectually much of the contention here made by defendant. The court adverts to the fact that at common law a judgment was presumed to be satisfied after a year and a day from its rendition, and, if the plaintiff failed to issue execution within that time, he could neither thereafter sue out a writ of execution nor a scire facias to revive the judgment, but would be driven to his action to recover on the judgment. This was the common law until the adoption of the statute of Westminster II. (13 Edw. I. c. 45), which authorized the writ of scire facias where the plaintiff desired to sue out an execution on a judgment after the lapse of a year and a day. 'It was early held, however, that the remedy given by this statute was in addition to, and not in substitution for, the former remedy by an original action. ' 'This statute,' says Lord Coke, 'is in the affirmative, and therefore it restraineth not the common law; but the party may waive the benefit of the scire facias given by this act, and take his original action of debt by the common law. ' The learned judge then proceeds to say:

'Now the period of twelve years is also the statutory period of limitations as to judgments (Code, art. 57, Sec. 3), and the effect, therefore, of the construction contended for, would be to prevent the judgment creditor from reviving his judgment by scire facias in order to keep it alive, and avoid the statute of limitations, and compel him to resort, for that purpose, to the less effective and more hazardous mode of issuing an execution within the twelve years, and renewing it, if not effective, from term to term, without break or intermission. Under a scire facias

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