57 Mo. 338 | Mo. | 1874
delivered the opinion of the court.
This was an action commenced in the Circuit Court in 1870, upon a judgment obtained before a justice of the peace in the State of Ohio in October, 1855. Defendant in his answer set up two defenses: First, that there was no such judgment as that declared upon in the petition ; and, Secondly, that the claim was barred by the statute of limitations. The court, on plaintiff’s motion, struck out that part of the answer setting up the statute of limitations as a defense, and the defendant excepted.
The case was then tried on the remaining issues, and judgment was rendered for plaintiff.
¥e will first consider the action of the court, in its ruling upon the question of the statute of limitations; and if we should conclude that there is error therein, that will be decisive of the whole case, and there will be nothing left for further determination.
Angelí lays it down in the text of his treatise, that the rule that the statute of limitations is not pleadable to a judgment of a court, does not apply to a foreign judgment (Angelí on Lim. § 83). But upon this subject the decisions have been conflicting.
If our statute has expressly provided a rule for the-government of the case, that must prevail, and it would be wholly an unnecessary work to attempt to extract or deduce what might be considered the best rule as furnished by .the authorities.
Our statute in reference to the limitation of personal actions, declares, “that civil actions, other than those for the recovery of real property, can only be commenced within the periods prescribed after the causes of action shall have accrued, namely within ten years: First, an action upon any writing whether
“Within five years: First, all actions upon contracts, obligations or liabilities express or implied,” except those mentioned above, “and except upon judgments or decrees of a court of record, and except where a different term is herein limited.” (2 Wagn. Stat., pp. 917, 918, §§ 8, 9, 10.)
By the 31st section of the same act it is provided, that 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 after the expiration of twenty years from the day of the rendition of such judgment, order or decree, {Ibid. p. 921). It will be perceived that while the statute malees express provision in regard to judgments and decrees of courts of record, no direct mention is made of judgments of courts not of record or justices of the peace.
In the case of Humphreys vs. Lundy, (37 Mo., 320) it was said that judgments of courts not of record, were not included in the foregoing exceptions, nor were they included at all within the purview of the act, unless the proceeding was by a civil action. The suit in that case was instituted under the law concerning “justices’ courts,” (B. C. 1855, p. 951, §§ 7 — 9) which gives a remedy by scire facias, to revive a judgment rendered in the court of a justice of the peace, and as the act contains no limitation on the time when the scire facias may be issued to revive a judgment in a justice’s court, it was held that the statute was not pleadable in bar. The opinion is based upon the ground that there is a clear distinction between an original action which is the com
The cause of action in this case is not mentioned in section nine, nor is it included within any of the other exceptions. It then clearly falls within the designation of an action upon an obligation or liability. That this was the intention of the legislature, is, I think manifest from the fact, that after declaring that all actions upon contracts, obligations or liabilities,
Wherefore it follows that the court erred in striking out that part of the defendant’s answer which pleaded the statute of limitations, and its judgment must be reversed and the cause remanded.