131 Mo. App. 670 | Mo. Ct. App. | 1908
This is a suit on a judgment. At the conclusion of the plaintiff’s evidence, the (court declared the law, at the instance of defendant, that under the pleadings and the evidence plaintiff could not recover. Plaintiff sued out this writ of error. The evidence on the part of plaintiff is to the effect that one W. R. Wilkerson, on April 18,1891, obtained a judgment against the defendant before a justice of the peace of Monroe county for the sum of $29.39 on a promissoi’y note. Execution was issued thereon by the justice and renewed several times. It was finally returned unsatisfied. It appears the present plaintiff, Bick, purchased the judgment from the plaintiff therein on August 24, 1893, and the same was properly-assigned to Bick, the present plaintiff, by Wilkerson, on the record, in accordance with the statute (sec. 3745, R. S. 1899; sec. 3745, Mo. Ann. St. 1906). On the following day, plaintiff Bick caused a transcript thereof to be filed in the office of the clerk of the circuit court, as provided in section 4018, Revised Statutes 1899; section 4018, Mo. Ann. St. 1906. The records of that court were introduced showing that a scire facias was issued out of the circuit court to revive this judgment on April 19, 1894; that judgment of revival was entered in accordance therewith, November 2, 1894; that a second scire facias was issued out of the circuit court March 12, 1898, for the purpose of reviving the judgment and a judgment of revival thereon was had April 27,1899. It appears the judgment has never been satisfied. As stated above, the court declared the plaintiff was not
The introduction in evidence of the two scire facias proceedings had on the judgment in the circuit court and the judgments thereon reviving the same, no doubt confused the issue to some extent. It is argued here on the part of defendant in error that the judgment must be affirmed for the reason it appears the judgment sued on is a judgment revived by scire facias in the name of J. J. Bick, the assignee thereof, which has been determined to be incompetent by the case of Bick v. Tanzey, supra. Indeed, if it appeared that the judgment sued upon was a judgment revived by Bick as assignee, the argument would be sound, under the authority of the case cited. But such is not the case presented. The suit is on the original judgment of Wilkerson versus the present defendant and the subsequent assignment thereof to the present plaintiff. The judgment sued upon was rendered April 18, 1891, prior to the amendment of our Statute of Limitations with respect to judgments. At the date of the rendition of the judgment, the statute with respect to limitations of actions thereon, provided a period of twenty years in which suits could be instituted. [Sec. 6796, R. S. 1889; Manning v. Hogan, 26 Mo. 570; Meyer v. Mehrshoff, 19 Mo. App. 682; Cobb v. Houston, 117 Mo. App. 645, 94 S. W. 299.] In 1895, the Legislature amended the Statute of Limitations referred to by reducing the period of limitation within which suits on judgments might be instituted to ten instead of twenty years, as theretofore. The amendment is incorporated in section 4297, R. S. 1899; sec. 4297, Mo. Ann. St 1906, The ten years’
The fact that plaintiff introduced the records of the circuit court showing two attempts to revive the judgment by him as assignee, and that the court had given two invalid judgments of revival thereon during the interim between its rendition and the institution of the present suit, certainly ought not to preclude his recovery in this case even though such revivals were invalid for the reason they were had in his name instead of in the name of the plaintiff in the judgment or his representatives. The original judgment remained a valid obligation until satisfied or barred by the Statute of Limitations even though there were two invalid attempts to revivé it. The suit was not on a judgment rehabilitated by the revival proceedings, and therefore those records may be regarded as surplusage in the case, for they were entirely immaterial to the issue involved. The suit predicates upon a valid judgment against the defendant, properly assigned to the plaintiff. It appearing the judgment remained unpaid and that suit thereon is not barred by the Statute of Limitations, the plaintiff made a prima-facie case and it devolved upon the defendant to mate his defense.
The judgment will be reversed and the cause remanded, to be proceeded with in accordance with the views herein expressed. It is so'ordered.