Wormington (Woolsey) v. City of Monett

• Decision Date: 14 March 1949
• Docket Number: 40960
• Parties: J. H. Wormington (Mabel Woolsey, Administratrix of the Estate of J. H. Wormington, Deceased), Appellants, v. City of Monett, Respondent
• Court: Missouri Supreme Court

218 S.W.2d 586

358 Mo. 1044

J. H. Wormington (Mabel Woolsey, Administratrix of the Estate of J. H. Wormington, Deceased), Appellants, v. City of Monett, Respondent

No. 40960

Supreme Court of Missouri

March 14, 1949

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

Affirmed.

W. D Tatlow and Frank B. Williams for appellants.

(1) After the lower court made its order April 6, 1935, granting an appeal to the defendant city from the judgment in favor of plaintiff's intestate rendered on the 6th day of October 1934, the lower court was without jurisdiction, even at the same term, to exercise further judicial functions in the case either by permitting execution to be issued or by entertaining a petition for scire facias to revive the judgment, so long as the judgment remained undisposed of in the appellate court. State ex rel. Patton v. Gates, 143 Mo. 63, 44 S.W. 739; Pickel v. Pickel, 251 Mo 197, 158 S.W. 8; Niedringhaus v. Niedringhaus Inv. Co., 54 S.W.2d 79; State v. Ashworth, 346 Mo. 869, 143 S.W.2d 279; State ex rel. St. Charles Saving Bank v. Hall, 321 Mo. 624, 12 S.W.2d 91; Hovey v. McDonald, 3 S.Ct. 136, 109 U.S. 150, 27 L.Ed. 888; Freeman on Judgments, 1879 Ed. 354, sec. 328. (2) The Statute of Limitations ceased to run against the judgment rendered by the lower court in plaintiff's favor when the lower court made its order allowing defendant's appeal and the time covered by the pendency of the appeal, with supersedeas, is not to be taken into account, either to create a bar by limitation or to raise a presumption of payment under Section 1038 R.S. 1039. St. Francis Mill Co. v. Sugg, 169 Mo. 130, 69 S.W. 359; St. Francis Mill Co. v. Sugg, 206 Mo. 148, 104 S.W. 45; State ex rel. Dean v. Douglas, 236 Mo.App. 1284, 165 S.W.2d 304; State ex rel. McGrew Coal Co. v. Ragland, 339 Mo. 452, 97 S.W.2d 113. (3) Defendant, being a city of the State of Missouri, the statute expressly provided that the order allowing its appeal, ipso facto, and without an appeal bond, stayed plaintiff's right to have execution issued on the judgment rendered against defendant and the appeal itself operated as a supersedeas. Sec. 1188, R.S. 1939; Sec. 132 (a), Civil Code of Missouri, Laws 1943, p. 392. (4) A statutory stay of execution fills the place of the writ of supersedeas under an older system of practice. American Brewing Co. v. Talbot, 135 Mo. 170, 36 S.W. 657; 3 C.J. 1271, sec. 1391, Note 49; 4 C.J.S., p. 1108, sec. 625. (5) The supersedeas which resulted from the very act of taking the appeal ceased to operate as a stay, only when the opinion with a copy of the judgment, constituting the mandate of the Supreme Court, was received and filed in the trial court. Pickel v. Pickel, 251 Mo. 197, 158 S.W. 8; State ex rel. McGrew Coal Co. v. Ragland, 339 Mo. 452, 97 S.W.2d 113. (6) Where an appeal is perfected, the judgment of the lower court is suspended and no proceeding can be had under and by force of it, after the appeal is actually taken. Parker v. H. & S. T.J. Co., 44 Mo. 415. (7) Where an appeal is dismissed the judgment appealed from becomes final. Rookery Realty Loan Inv. Bldg. Co. v. Johnson, 251 S.W. 741. (8) A supersedeas preserves the status quo pending the determination of the appeal. C.J.S., p. 1149, sec. 662; State ex rel. Helm v. Duncan, 225 Mo.App. 393, 36 S.W.2d 679. (9) A judgment having been appealed from and superceded, although final for purposes of appeal, is not a final determination of the parties' rights. 4 C.J.S. pp. 1149, 1150, Note 55; Ward v. Matthews, 80 Cal. 343, 22 P. 187; Smith v. Kimball, 76 Utah 350, 289 P. 588; 70 A.L.R. 101. (10) Under the provisions of Section 1038 Revised Statutes 1939, one who obtains a judgment, order or decree of any court of record may have the same revived and the act of revival prevents the presumption of payment therein mentioned from attaching for an additional 10 years from date of revival. Such revival may be had by scire facias. Kratz v. Preston, 52 Mo.App. 251; Sutton v. Cole, 155 Mo. 206, 55 S.W. 1052. (11) A scire facias proceeding to revive a judgment merely seeks a revival of the former judgment in order to have execution on it. Bank of Edwardsville v. Raffaelle, 381 Ill. 486, 45 N.E.2d 651, 144 A.L.R. 401; Walsh v. Bosse, 16 Mo.App. 231; Coones v. Moore, 57 Mo. 338, 341; Vick v. Dixon, 147 Mo.App. 69, 126 S.W. 235; St. Louis v. Miller, 145 S.W.2d 504. (12) Proceeding by scire facias to revive a judgment is, in effect, but an application by the plaintiff to the court for an execution on his judgment after the time when he could have demanded execution of the clerk. Goddard to the use of Hyde v. Delaney, 181 Mo. 564, 80 S.W. 886, quoting and adopting definition in 18 Ency. Pl. and Pr. 1059.

E.V. Sweeney, City Attorney, and J.E. Sater, Special Counsel for respondent.

(1) Execution was issued on September 26, 1947, on a judgment originally rendered on October 6, 1934. No contention is made by appellant that payments were made on the judgment or that the same was revived; therefore, the clerk was without jurisdiction to issue an execution thereon and the court properly quashed the same. Sec. 1038, R.S. 1939; Kansas City v. Field, 270 Mo. 500, 194 S.W. 39; Merchants' Mutual Ins. Co. v. Hill, 17 Mo.App. 590; Christy v. Flanagan, 87 Mo. 670; Kansas City v. Tiernan, 202 S.W.2d 20; Hedges v. McKittrick, 153 S.W.2d 790; Northwestern Brewers' Supply Co. v. Vorhees, 203 S.W.2d 442. (2) The wording of Section 1038 and the construction placed thereon by the courts of this state clearly shows that the execution issued in this cause is void. This statute is a special limitation statute and no other limitation statute can be read into it. Ottenad v. Mount Hope Cemetery & Mausoleum Co., 176 S.W.2d 62. (3) Sec. 1038 is a statute of extinguishment and could not be waived. Williams v. St. Louis Railroad Co., 123 Mo. 573; City of Springfield ex rel. v. Delming, 252 S.W. 901; Lewis v. Mo. Pac. Railroad Co., 23 S.W.2d 100.

OPINION

Douglas, J.

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. 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. RSA; 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 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. RSA 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...