117 Mo. App. 645 | Mo. Ct. App. | 1906
On the eleventh day of February, 1879, the plaintiff recovered a judgment in the circuit court of the city of St. Louis, against defendant for four hundred and thirty-seven dollars and fifty cents, with interest from the date thereof at the rate of six per cent per annum. The present suit is founded on this judg
“Comes now the defendant in the above-entitled cause and for his answer to plaintiff’s petition herein, admits that about the year 1879, plaintiff instituted a suit against defendant in the circuit court, city of St. Louis, State of Missouri, and obtained a verdict and judgment therein, but denies that any part of said judgment has not been paid and avers that said judgment has long since been fully settled, satisfied and paid. And also avers that any action on said judgment is barred ®by reason of the Statute of Limitations of the State, then and there in force at the time said judgment was obtained, which said statute was passed----1857 (Laws Mo., 1856-7, art. 3, sec. 16, G. S. Mo. 1865, p. 749, sec. 31). Defendant admits that he departed from the State of Missouri in the year 1883, and has resided continuously since said year in the State of California, and denies each and every other allegation in said petition contained, not herein specifically admitted to be true.”
The issues were submitted to the court sitting as a jury.
Plaintiff, to sustain the issues on his part, offered in evidence the judgment sued on. Defendant objected to the judgment as evidence, “because the petition on its face did not state facts sufficient to constitute a cause of action against defendant, and because said judgment, showing on its face that it was twenty years old, it was incompetent'and immaterial and was barred by prescrip
“Every judgment, order and decree of any court of record of the United States, or of this or any other State or Territory, shall be presumed to be paid and satisfied
The act remained intact until the 1865-6 session of the Legislature, at which session a joint committee of the two houses was appointed to collate and classify the general laws of the State. The committee, in arranging and classifying the general laws, collated them under the headings of titles and chapters, in numerical order, doing away entirely with classification by articles. By this arrangement the three articles of the Act of 1856-7 are grouped in one chapter (“Chap. 191, p. 744, General Laws of 1866). The sixteenth section of the chapter is the same as section 12, article 2, of the Act of 1856-7, with this exception: for the phrase “specified in this article,” the words, “herein specified,” are substituted. Section 31 of the chapter and section 16, of the third article of the Act of 1856-7, are identical. The substitution of the words “herein specified,” in section 16, for the words, specified in this article,”'in the original act make the section apply to the whole act,-where as in the original act it only applied to actions enumerated under article 2 of the act. Actons on judgments are not among them. Defendant contends that the substitution was necessary to conform the wording of the section to the change of classification from articles to chapters, and that the law itself was not changed, and that the section only applies to the sections that were embraced in article 2, of the Act of February 24,1857. It is the settled law that if a new enactment is carried in ipsissimis verbis into a revision of the general laws and placed in an article or chapter, in
In Manning v. Hogan, 26 Mo. 1. c. 574 (decided after the enactment of the statute), the Supreme Court said: “It was useless legislation to declare that a judgment shall be presumed to be. paid after the lapse of twenty years, if a period short of that time would bar an action on it.” And in Meyer to the use v. Mehrhoff, 19 Mo. App. 1. c. 684, this court said: “Suits upon judgments of courts of record are not barred by the statute before the expiration of twenty years.”
Section 376, of the New York Code of Civil Procedure, after singling out final judgments rendered by-certain courts for the payment of money, says a judgment “is presumed to be paid and satisfied, after the expiration of twenty years from the time when the party recovering it was first entitled to a mandate to enfore it. Tlfis presumption is conclusive, except as against a person who, within twenty years from that time, malees a payment or acknowledges an indebtedness of some part of the amount recovered by judgment or decree, or his heir or personal representative, or a person whom he otherwise represents. Such an acknowledgment must be in writing, and signed by the party to be charged thereby.”
In Gray v. Seeber, 53 Hun 1. c. 612, the court, speaking of this statute, said: “That a statute like the one under consideration, which creates an artificial and Conclusive presumption of the payment and satisfaction of a debt, is, in effect, a statute of limitation, cannot, we think, be successfully denied. A statute which declares that a judgment shall be conclusively presumed to be paid and satisfied after the expiration of twenty years
Independent of the statute suspending the running of the Statue of Limitations during the absence of the •defendant from the State, the plaintiff’s inability to successfully prosecute a suit on his judgment during the period of the defendant’s absence, by necessity stopped the running of the statute of limitations at common law. [19 Am. & Eng. Ency. of Law, p. 215.] In United States v. Wiley, 78 U. S. 508, there being no statute to fit the case, the court held that during the continuation ■of the rebellion (1861-5) its effect was to stop the running of the Statutes of Limitations in regard to claims against citizens residing in the rebellious states. Judge Strong, writing the opinion, at page 513, said: “It is the loss of the ability to sue rather than the loss of the Tight that stops the running of the statute.” The same learned judge in Braun v. Sauerwein, 77 U. S. 1. c. 223, ■after reviewing many of the authorities, said: “It seems, therefore, to be established, that the running of a statute ■of limitation may be suspended by causes not mentioned in the statute itself.” In Amy v. Watertown, 130 U. S. 1. c. 323-4, this language of Judge Strong is quoted ■and pronounced “undoubtedly correct.”
It is immaterial, therefore, for the purposes of this ■case, whether section 31, supra, is qualified or affected in any manner by section 16. At common law the statute was suspended, independent of any statute on the ■subject, during the defendant’s non-residence, and we
In Latimer v. Trowbridge, 52 S. C. 193, decided on a statute much like section 31, it was held that the time during which a defendant was absent from the State should be deducted, as required by statute, to have an action on judgment and, by analogy, the same rule applies to the presumption of payment from lapse of time.
In Daggett v. Tallman, 8 Conn. 168, it was held that the absence of defendant from the State repelled the presumption of payment.
In Pennsylvania the operation of the Statute of
In Penrose v. King, 1 Yeates (Pa.) 344, the court held that the presumption of payment from lapse of time should also be suspended. A like ruling under like conditions was made in Tunstall’s Admr. v. Withers, 86 Va. 892, and in Dunlop v. Ball, 6 U. S. 180, in which Chief Justice Marshall said: “The principle, upon which the presumption of payment arises from the lapse of time, is a reasonable principle, and may be rebutted by any facts which destroy the reason of the rule,” and held that the disability of the plaintiff to sue was sufficient reason to repel the presumption of payment.
In Newman v. Newman, 1 Stark. 101, the defendant, after contracting a debt in England, became a resident of America. Lord Ellenborough was of the opinion that there was no ground for the presumption of payment, since it appeared the debt was unpaid when the defendant removed to America. This case is cited and followed in McLellan v. Crofton, 6 Me. 1. c. 334.
The cases construing our statute and the New York statute, declaring what evidence shall be received to rebut the presumption, take a different view on account of the statute. Thus, in Fisher v. Mayor, 67 N. Y. 73, at page 80, it is said, in regard to the statute of New York, noted above, that the presumption can only be repelled in the manner prescribed by the statute, that is by partial payment, or written acknowledgment that the debt or a part of it is not paid; that the presumption “is conclusive unless rebutted in one of the two ways mentioned.”
In Gaines v. Miller, 111 U. S. 395, construing section 31, supra, the court said: “This presumption (the presumption of payment after the lapse of twenty years) is a rule of evidence and not a limitation, and is not subject to the exceptions and incidents of an act of limittion.”
In Cape Girardeau County v. Harbison, 58 Mo. 90, in discussing the dissimilarity between presumption of payment from lapse of time and the defense of the Statute of Limitations, the court, at page 95, said:
“There is no sort of propriety in confounding the Statute of Limitations with the presumption of payment arising from lapse of time. As defenses, the two are wholly distinct in their applications and incidents. When the statute affects a right of action, it operates simply a blight, as it were, upon its recoverable energy. It matters not in the least whether the demand has been previously paid or not,’ the statute destroys forever, upon the last day of the allotted period, its validity in the court of justice. Hence, if there be not a new contract in the promise or acknowledgment upon which the creditor relies, he has still nothing to stand upon. But in the other defense, the fact of payment, real or supposed, is the only matter to be considered. The law first presumes payment. An acknowledgment by the debtor merely removes this presumption by furnishing evidence to prove that the debt has not been paid. There is no new contract, express or implied. The recovery must be upon the original demand or nothing.”
The suit was to foreclose a mortgage which had matured more than ten years before the commencement of the action. The ten-year Statute of Limitations was interposed as a defense. The court held that while the debt might be barred, the mortgage, which was not subject to any statute of limitations, was not; and held,
The first clause of the statute (section 31) is declaratory of the common law rule, that a judgment is presumed to be paid in twenty years from the date of its rendition. This presumption at common law might be rebutted by any cogent proof that it had not in fact been paid. The second clause of the statute changes this rule, both in respect to the character and quantum of proof required to remove the presumption, by pointing out with definiteness and certainty the only evidence that can be received to rebut the presumption, and hence enacts an inflexible rule of evidence, which is binding upon the courts and forces us to the conclusion that, while the defendant’s absence from the State created such an impediment at common law to the bringing of a suit as to arrest the operation of the Statute of Limitations, such absence was not sufficient, under the statute, to repel the presumption of payment, and that the judgment, until this presumption is removed by one of the ways pointed out by the statute, is not even prima facie evidence of an indebtedness and should have been excluded. [Idler v. Borgmeyer, 65 Fed. 1. c. 926.] .