163 Mo. App. 488 | Mo. Ct. App. | 1912
On the 10'th of December, 1897, the Glidden-Felt Manufacturing Company, a corporation, recovered a judgment in the circuit court of Pike county, this state, against Charles L. Robinson, James D. Kincaid, C. Jeter Robinson and Warren G. Robinson, in the sum of $782, on account of two promissory notes. One Daniel Pendergast appears to have been a codefendant, but it is recited in the judgment that the cause had been dismissed as to him. Afterwards, on the 3d of December, 1907, the plaintiff, Glidden-Felt Manufacturing Company, filed a petition in that court in which it prayed for the issue of a scire facias against the three Robinsons, Kincaid and Pendergast. On that day scire facias issued, directed to the sheriff of the city of St. Louis against C. Jeter Robinson, in and by which he was ordered to appear before the circuit court of Pike county at the next term thereof and show cause; if any, why the judgment should not be revived against him. This was duly served on him and he appeared and filed his return to the scire facias, designating it, however, as an answer to the petition and writ. In this return or answer Robinson avers that he was never served with process, in the suit referred to, had never entered his appearance in the cause, and that the Pike County Circuit Court had never acquired any jurisdiction over him. As a further answer he set up that there was then pending and undetermined in the circuit court of the city of St. Louis, a suit instituted by plaintiff against him and another on the same judgment, in and by which said action plaintiff seeks to obtain a new judgment against the defendant and another. (This plea was stricken out on motion.) Robinson also pleads the Statute of Limitations in bar, claiming that more than ten years have elapsed from the date of the
The court thereupon proceeded to hear the case, a jury having been waived, plaintiff requesting a written finding of fact. The court took the cause under advisement and afterwards making its finding of fact and conclusions of law, entered judgment in favor of plaintiff reviving the judgment as against the defendant C. Jeter Robinson for the full amount of the judgment and interest, giving credit, however, on the judgment, for the two payments of $500' and $300, respectively, set up in the answer or return as having been made by Charles L. Robinson and Warren G. Robinson, respectively. From this judgment the de
It appears that James L. Kincaid, one of the parties- defendant in the original judgment, had died before the commencement of proceedings to revive the judgment, and while the prayer for the scire facias asked that it issue as against Daniel Pendergast as a party defendant, very clearly tMs was an oversight, as in the original judgment it is recited that the cause had been dismissed before judgment as to him. It further appears that the Glidden-Felt Manufacturing Company and Francis T. Simmons & Co. were one and the same corporation, the Glidden-Felt Manufacturing’ Company apparently attempting to change its name to that of Francis T. Simmons & Co., but this change not having been made or being discovered not to have been made in legal form, the cause was thereafter prosecuted in the name of the original plaintiff, Gliddent-Felt Manufacturing Company. This is the explanation of the variance in name and attempted substitution of one name for the other. There was no pretense of payment of the judgment in full or of any payment upon it by this defendant.
It is obvious that the parties to tMs suit, at its inception were laboring under a misapprehension as to the proper proceedings for the revival of .a judgment on writ of scire facias. The learned trial court, however, when the matter was first submitted to him, undoubtedly understood this and setting aside that submission, allowed the cause to proceed as on the scire facias, treating the so-called amended petitions as nullities. Thereafter the cause proceeded in due form against the defendant, C. Jeter Robinson, alone, one of the defendants in the judgment having died, the two other Robinsons having settled for part of the judgment, being released by plaintiff and the cause dismissed as to them.
In support of this assignment, that counsel, as his first proposition,- claims that the corporate existence of both the Glidden-Felt Manufacturing Company and Francis T. Simmons & Co., being in issue by a verified answer denying the corporate character of either, it was essential that plaintiff prove the fact of incorporation. As his second point he argues that defendant’s plea of the bar of the ten-year statute should have been sustained, and that the answer having set up an ■ abandonment of the suit to revive by the Glidden-Felt Manufacturing- Company, on June 15, 1909, by the filing on that date of an amended petition in the name of Francis T. Simmons & Co., in effect, constituted a new suit, instituted by the latter company on that date, and as the judgment sought to be revived was rendered December 10, 1897, he claims that the statute had interposed as a bar; that after the disappearance of Francis T. Simmons & Co., as plaintiff, and the reappearance of the Glidden-Felt Manufacturing- Company, which occurred on or after June 15, 1909, a new suit was instituted on that date by the Glidden-Felt Manufacturing Company.
The trial court found these facts as well as the conclusions of law against defendant.
Under our statute the lien of a judgment continues for three years from its rendition, subject to revival at any time within ten years. [E. S. 1909', sections 2125, 2126.] Hence if the plaintiff in a judgment desires to revive the lien, he is put to the writ of scire facias, and the judgment being thereupon revived, the lien continues for another period of three years. [E. S. 1909, section 2132.] When scire facias is sued out and issued, as it must be, from the court in which the judgment is rendered, it is to be served on the defend
In the case at bar it appears that one of the defendants to the original action is dead, that there was no judgment against another defendant named in the writ, and that two other defendants had been discharged by the plaintiff in the judgment from any further liability thereon. The court, in entering up the judgment, of revivor here, credited the judgment with the amounts paid by these two defendants. Hence, as far as the present defendant is concerned, he has no cause to complain on that score, the amount of the debt for which he, along with the other defendants, was liable, having been diminished by the amount of the payments which they made and he having received the full benefit of them.
With these general remarks, as pertinent to an understanding of this case, we take up the points made by counsel for appellant.
The proceeding by scire facias upon a judgment to revive it, is but a continuance of the former suit. (2 Tidd’s Practice [4 Am. Ed.], *p. 1096), and is not the institution of a new suit. [Armstrong v. Crooks, 83 Mo. App. 141; Long v. Thurmond, supra (l. c. 231);. Bick v. Vaughn, 140 Mo. App. 595, l. c. 600, and cases, there cited (120 S. W. 618).]
It is furthermore the rule in proceeding under scire facias to revive a judgment, that the defendant in his return to the writ may plead nul tiel record). of the recovery, payment or release, and the like, but: he cannot plead any matter to the scire facias on the-judgment which he might have pleaded in the. original action. [2 Tidd’s Practice (4 Am. Ed.), #pp-. 1130, 1131, top pp. 1129, 1130; Watkins v. The State, 7 Mo. 334; Jeffries v. Wright, 51 Mo. 215.] So says Judge Napton, speaking for our Supreme Court in the Watkins case, supra. “No principle is better settled,”' says that learned judge, “than that to a scire facias> on a judgment, no defense can be pleaded, which might have been made to the original action. The principiéis one uniformly adopted by the courts, and subject to no exceptions.” In Jeffries v. Wright, supra, some of the very defenses set up by this defendant here were there interposed. As, for instance, the defendant in his return denied that the circuit court in which the judgment had been rendered had ever obtained
It goes without saying that it was open to defendants, in the suit upon which the judgment was founded, to have there raised the defense that the plaintiff was not a corporation or one authorized to do business in this state. Whether he then and there raised that or not, judgment went in favor of plaintiff as a corporation; it is a judgment of a court of record, a court of general jurisdiction, and the presumption is irrefutable, by plea or proof, that plaintiff, when it recovered judgment, was a corporation and entitled to maintain the action.
The second contention, which involves -the defense of the ten-year Statute of Limitations, is untenable. It appears, as before remarked, that after the filing of the petition for the issue of the writ and its issue, the name of the plaintiff was changed on the assumption that its corporate name had been legally changed. It appears that in fact this change of name had not been made, and it was conceded in the argument at bar
The judgment of the circuit court is affirmed.