Wormington v. City of Monett, No. 40960.

• Court: Missouri Supreme Court
• Writing for the Court: Douglas
• Citation: 218 S.W.2d 586
• Parties: WORMINGTON (WOOLSEY) v. CITY OF MONETT.
• Docket Number: No. 40960.
• Decision Date: 14 March 1949

218 S.W.2d 586 WORMINGTON (WOOLSEY)
v.
CITY OF MONETT. No. 40960. Supreme Court of Missouri, en Banc. March 14, 1949.

Appeal from Circuit Court, Stone County; Tom R. Moore, Judge.

Action by J. H. Wormington against City of Monett for damages allegedly resulting from negligent operation of the city's sewage disposal plant, wherein city's appeal from a judgment for plaintiff was dismissed and wherein Mabel Woolsey, administratrix of the estate of J. H. Wormington, deceased, was substituted as plaintiff. From an order quashing an execution issued upon the judgment in plaintiff's favor, plaintiff appeals.

Affirmed.

W. D. Tatlow and Frank B. Williams, both of Springfield, for appellant.

E. V. Sweeney, City Atty., and J. E. Sater, Sp. Counsel, both of Monett, for respondent.

[218 S.W.2d 587]

DOUGLAS, Judge.

Plaintiff has appealed from an order quashing an execution issued upon a judgment in his favor. His judgment against the defendant, City of Monett, was rendered on October 6, 1934. After it was rendered the city duly appealed to the Springfield Court of Appeals. The appeal languished there for twelve years through fifteen continuances granted upon the agreement of the parties. Then in 1946 that court upon motion ordered the appeal dismissed. Thereupon the case was transferred to this court. 198 S.W.2d 536. This court heard the case and likewise entered an order dismissing the appeal. 356 Mo. 875, 204 S.W.2d 264. Our mandate was duly issued, and was filed in the circuit court on September 26, 1947. The plaintiff without delay had an execution issued upon his 1934 judgment. The trial court quashed the execution, and plaintiff has appealed.

The trial court found the date of the original rendition of the judgment was October 6, 1934; that the judgment had never been revived after its original rendition; and that no payments had been made on the judgment. Wherefore the trial court found the judgment was conclusively presumed to be paid after ten years from its rendition under Section 1038, R.S.1939, Mo.R.S.A.; that the appeal did not toll this statute; and that the execution, issued on September 26, 1947 and more than twelve years after the original rendition of the judgment, was untimely and void. Accordingly, it entered its order quashing the execution.

Section 1038 provides: "Every judgment, order or decree of any court of record of the United States, or of this or any other state, territory or country, 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."

The question for decision is whether the operation of Section 1038 was suspended or tolled during the pendency of the city's appeal so that the ten-year period did not commence to run against plaintiff's judgment until the appeal was finally disposed of in 1947. Or, to state the question in another way, is it necessary to revive a judgment while an appeal from it is still pending.

Plaintiff contends in this appeal that the operation of Section 1038 was suspended during the city's appeal from his judgment, especially since under the statute the appeal itself, without bond, stayed the execution of the judgment. Section 1188, R.S.1939, Mo.R.S.A., provides that execution is stayed in appeals where a city is appellant without the need of furnishing a supersedeas bond. It appears to be plaintiff's position since no step could be taken by him to collect his judgment and no execution issued so long as the appeal from his judgment was pending, that the running of the ten-year period prescribed by Section 1038 would not commence until after the appeal was disposed of, and he was not required to revive the judgment during the pendency of the appeal. We are not in accord with plaintiff's contention. It is our view that the ten-year period commenced to run on the date the judgment was rendered regardless of the appeal, so that the appeal did not postpone the commencement of the ten-year period. Since the judgment was not revived within the period, its force was extinguished by the lapse of ten years from its original rendition, so no execution could thereafter validly issue upon it.

We would be more inclined to agree with plaintiff's position if the presumption of payment under Section 1038 was a rebuttable one. The prosecution of

218 S.W.2d 588

an appeal by a judgment debtor should certainly rebut a presumption of payment by him of the judgment appealed from. However, the presumption created by Section 1038 is not rebuttable, it is conclusive. See Northwestern Brewers Supply Co., v. Vorhees, 356 Mo. 699, 203 S.W.2d 422.

We must trace the history of Section 1038 to explain the holdings in some of our earlier decisions. The doctrine was well established at common law that, in the absence of rebutting circumstances, debts will be presumed paid after twenty years from the time they were due. This rule was commonly applied where the indebtedness was evidenced by various instruments, but was applied also to judgments. We incorporated the common law doctrine in its application to judgments into our Statutes in 1835. R.S.1835, p. 396. The first statute provided a judgment should be presumed paid after the expiration of twenty years "from the time of giving such judgment." This provision was carried down through the statutes without any major change except "the day of the rendition of such judgment" was substituted for the "time of giving such judgment." Sec. 6796, R.S.1889. In 1895 the period was reduced from twenty years to ten years. Laws 1895, p. 221. However, in 1899 the statute underwent a major change when the same provision was adopted as we now have in Section 1038. The ten-year period was retained to run from "the date of the original rendition" of the judgment or from its revival. The presumption was expressly made a conclusive one in all cases. While the previous statute prohibited any suit to be "brought" on the judgment after the expiration of the period, the Amendment of 1899 made a stricter provision. Its prohibition was "nor shall any suit be brought, had or maintained" on the judgment. Laws 1899, p. 300. Such is the present provision.

So Section 1038 now provides for a conclusive presumption of payment ten years from the date of the original rendition of a judgment or ten years from its revival, or from the entry upon the record of the last payment on the judgment. No exceptions are provided.

The conclusive presumption of payment created by Section 1038, though imposing a limitation on actions on judgments, is to be distinguished from the bar of the remedy created by the usual statute of limitation. The usual statute of limitation imposes a bar to the recovery of the debt; it operates to prohibit an action upon the debt. On the other hand a presumption of payment statute such as Section 1038, wipes out or cancels the debt itself; it extinguishes the right of action. It is not concerned with the remedy because there is no right left to be enforced.

Such a statute is not subject to the exceptions usually found in ordinary statutes of limitation. 34 Am.Jur., Limitation of Action, § 6; 1 A.L.R. 780. The United States Supreme Court, considering our 1835 Statute said it was not subject to the exceptions and incidents of an act of limitation. Gaines v. Miller, 111 U.S. 395, 4 S.Ct. 426, 28 L.Ed. 466...