83 Mo. App. 141 | Mo. Ct. App. | 1900
Lead Opinion
On September 30, 1896, the following judgment was rendered against respondent by the Audrain Circuit Court, to wit: “Now on this thirtieth day of September, 1896, the above cause coming on for trial, upon plaintiff’s petition to revive his judgment against the defendant, and the court finds that the defendant has been personally served with writ of scire facias as under the law in such cases provided, and this cause is submitted to the court, and the court finds for the plaintiff and doth order, adjudge and decree that plaintiff’s judgment be, and the same is herebv
On March 9, 1899, a general execution was issued on this judgment and delivered to the sheriff of Audrain county and a levy was made by him on certain described real estate as the property of the defendant in the execution, Mary Stewart. At the term of court to which the execution was returnable, respondent filed a motion to review the records upon which the judgment and execution were founded, and the following motion to quash the execution, to wit:
“Now comes the defendant herein and moves the court to quash the execution issued herein, for the reason that there is no judgment upon which to issue the same and because the judgment upon which the same is issued is void, and further, for the reason that more than ten (10) years has elapsed since the rendition of the judgment herein and more than ten (10) years had elapsed before the issue of said execution, since the rendition of the judgment herein.”
In support of the motion to review and to quash, the respondent offered the following evidence. Eirst, a judgment against respondent and in favor of appellant, rendered by a justice of the peace August 29, 1883, for $68, with ten per cent compound interest; second, issuance of execution by the justice and return of same by constable not satisfied; third, transcript of this judgment and return filed in clerk’s office December 13, 1883; fourth, the following judgment rendered by the Audrain Circuit Court February 4, 1890, to wit: “Now, on this fourth day of February A. D. 1890, comes the parties by their counsel, and all and singular the matters are submitted to the court which having been seen
“Plaintiff states that said judgment remains unsatisfied and is still due and unpaid, with accumulated interest to the amount of one hundred and thirty-five dollars debt and eleven dollars and thirty cents cost, which said judgment bears ten per cent interest per annum compound, and the lien thereof on the lands and tenements of said defendant will expire on the eighteenth day of June, 1896.
“Wherefore, plaintiff prays that the lien of said judgment should be revived against the lands and tenements and real estate of said defendant, that a writ of scire facias issue to the said defendant her terre tenants and the occupants of her land, commanding her and them to appear before this court, at the next term thereof, to show cause if any they
Summons as follows:
“To the Sheriff of Audrain County — Greeting.
“You are hereby commanded to summon Mary M. Stewart so that she be and appear before the judge of the Audrain Circuit Court on the first day of the next term thereof, to be begun and held at the court house in the city of Mexico, Mo., on the third Monday in September, next, to answer to the petition of William Armstrong, as set forth and alleged in his said petition, true copies of which are herewith sent, and thereof make due return as the law directs.
“Witness, P. M. Morris, clerk of said court, etc.”
Officer’s return on same:
Sheriff’s return.
“Executed the within writ in tbe county of Audrain and state of Missouri, on the twenty-sixth day of June, 1896, by delivering a certified copy of the within petition and summons to Mary M. Stewart the within named defendant,” which proceeding resulted in the judgment on which the execution was issued. On this evidence the court set aside all three of the revival judgments and quashed the execution. After an unavailing motion in review and for a rehearing the plaintiff appealed.
Section 6287 enacts: “Every such judgment (justice’s transcript judgment), from the time of filing the transcript, shall have the same lien * * * and shall be under the control of the court where the transcript is filed, may be revived and carried into effect in the same manner and with like effect as judgments of circuit courts.” At any time ■within ten years a judgment of a circuit court may be revived, by suing out a scire facias, section 6013, Revised Stat
The judgment quashing the execution is affirmed.
Rehearing
MOTION FOR REHEARING.
In Rhode Island v. Massachusetts, 12 Pet. 651, jurisdiction of a court is said to be “the power to hear and determine the subject-matter in controversies between parties to the suit, to adjudicate or exercise any judicial power over them.”
In Adams v. Cowles, 95 Mo. 501, and Brown v. Woody, 64 Mo. 547, our supreme court says, that “the question of jurisdiction is one which must be tried by the whole record.” Because the statute (R. S. 1889, sec. 6288) confers on'the circuit court jurisdiction to revive a transcript judgment, it does not follow that the court had the jurisdictional power to revive the judgment in this cause. The power conferred by the statute is dormant until it is put in force by the issuance of the writ designated by the statute to call it into activity. The suing out of a writ of scire facias while not the beginning of a new suit, is nevertheless a suit. The suit is to revive and continue the lien of a final judgment theretofore rendered between the same parties, and must be based upon some declaration in the writ to revive, which will quicken the
Dissenting Opinion
DISSENTING OPINION BY
It is the well-settled law of this state that a judgment of revival is a new judgment. Walsh v. Bosse, 16 Mo. App. 231. It is equally well settled that a judgment which shows on its face jurisdiction of the person and subject-matter is not subject to collateral attack. Fulkerson v. Davenport, 70 Mo. 541; Yates v. Johnson, 87 Mo. 213; McDonald v. Frost, 99 Mo. 44; Myers v. McRay, 114 Mo. 377; Freeman on Judgments, sec. 524. Neither can process issued on such a judgment be. attacked. Yeoman v. Younger, 83 Mo. 424. By jurisdiction of the subject-matter is meant “jurisdiction of causes of the general class to which the action belongs.” Posthlewaite v. Ghisselin, 97 Mo. 424. It is not disputed that the circuit court had authority to revive the judgment. As each one of the judgments of revival showed that the defendant had been personally served with process, I am at a loss to know upon what principle the execution in this case can be rightfully quashed. In the last judgment entry of revival and upon which the execution was issued, it is written that the defendant “had been personally served with writ of scire facias as under the law in such cases provided, etc.”
The foregoing are the reasons for my dissent in this case.