Kratz v. Preston

52 Mo. App. 251 | Mo. Ct. App. | 1893

Ellison, J.

— This action is based on a judgment obtained by plaintiff against defendant in the state of Pennsylvania on the twenty-sixth of July, 1861, and which was revived in that state on the eleventh of February, 1891. The transcript of the judgment and revivor was excluded by the circuit court. Judgment being given for the defendant, plaintiff appealed.

The original judgment was rendered on the personal appearance of the defendant. The subsequent revivor on scire facias was had after defendant had removed to this state, and was obtained by issuing a scire facias and an alias with a return nihil to each. From the briefs of the counsel we take it that the trial court excluded the transcript under the statute of limitations, the judgment being more than twenty years old. If the period of limitations, as applied to this cause, is to be counted from the day the original judgment was entered in Pennsylvania, then it is barred, since it was more than twenty years prior to the commencement oí this action. Revised Statutes, 1889, sec. 6796. But, if the date of limitation is to begin at the revival of such judgment, then the statute had not run. Walsh v. Bossee, 16 Mo. App. 231. That case decides that a scire facias is a proceeding in the nature of an action, and the judgment of revivor is a renewal of its life, creating new rights for a new period of limitation. The reasoning and conclusion of the opinion in that case is so satisfactory to us that we need do no more than cite and adopt it. That case and the numerous authorities therein discussed use, as the base for the conclusions reached, the fact that the revival creates new rights in the plaintiff.

But the further question is presented in this case, whether the revival of this judgment was not void in the courts of this state, since it was not had on personal service, the proceedings therefor being commenced long after the defendant had removed from Pennsylvania ¿to Missouri. It was, perhaps, this question which influenced the trial court to the rulings of which complaint is made. If such was the view of the trial court, it is sustained by a paragraph in 2 Black on Judgments, section 892, based on the case of Kay v. Walter, 28 Kan. 111, wherein it is decided that a judgment of revival without jurisdiction over the person of defendant, by service of process or appearance, is a nullity outside of the jurisdiction of the state authorizing such proceeding. That in that case, since the defendant was a bona ficle resident of Kansas, and in that state when the proceedings to revive were begun* and did not authorize his appearance to be entered, the judgment was a nullity as to defendant in the courts of Kansas.

It is undoubtedly true that to give a court jurisdiction, which will be regarded in courts outside of the territory of the state where such court is located, there must be process served upon the defendant within the limits of such jurisdiction, or some property must be found within such limits against which such court may proceed in rem. Latimer v. Railroad, 43 Mo. 105. It is also, likewise, true that, though the record of the foreign judgment should show jurisdiction over the person, in this respect, the record may be disputed. Marks v. Fore, 51 Mo. 69. But those cases and others following them involve judgments as originally rendered. The question before us now is not the same. Here there was jurisdiction over the person of defendant when the original judgment was rendered. Is it necessary in such case that there should be a new jurisdiction of the defendant’s person at the time the judgment was revived? It seems to me proper to ascertain the nature of a judgment of revivor in order to properly dispose of this question satisfactorily. It is obtained by a scire facias, which is a judicial writ, the use of which the statute has authorized to keep in force and effect a judgment already rendered. It is said to be a statutory substitute for the common-law action on the judgment which was formerly necessary to be brought if execution be not issued within a year and a day. O’Brien v. Ram, 3 Mod. 189. I can find no case of revivor where it is distinctly said to be a new action. It is said to be in the nativre of an action, for pleas may be made to it (Walsh v. Bossee, supra), and on a proper issue a jury may be had. Simpson v. Watson, 15 Mo. App. 425. It is chiefly from .the fact that the defendant may plead to it that it derives its likeness to an ordinary action. But what may he plead? Only those things which go to his discharge since the rendition of the original judgment. He cannot otherwise alter the original. The validity of the debt, his liability, and those other matters which he might have pleaded to the original action are closed to him on scire facias. But, if he has paid the judgment, or has been discharged, he may show this on plea to the-writ. Bacon says: “And though it be held that a scire facias is in nature of an original, yet it hath been adjudged that no writ of error lies into the exchequer chamber on a judgment given in bancus regis on a scire facias, the statute, 27 Elizabeth, c. 8, which givesthe writ of error, mentioning only suits or actions of debt, detinue, covenant, account, actions upon the case, ejectione firmce or trespass.” 8 Bacon’s Abridgments, 599. Neither could the plaintiff have costs except by aid of the statute. 8 Bacon’s Abridgments, 599. The writ is for some purposes but the continuance of the original. 8 Bacon’s Abridgments, 588. This is peculiarly so when its object is to revive a judgment. In Wright v. Nutt, 1 Term. R, Ashhubst, J., in speaking of the revival of a judgment, said: “This is not a new action, but a continuation of the old one; it is only a scire facias to revive the former judgment.” See also Denegree v. Hann, 13 Iowa, 240; Coomes v. Moore, 57 Mo. 338; Humphreys v. Lundy, 37 Mo. 320. See also Edgar v. Stover, 59 Mo. 87, where the revival of a judgment under circumstances similar to the case at bar was, by acquiescence at least, deemed valid. The judgment sued on in that ease was held bad for lack of' jurisdiction in the original judgment. Such object being different from many of those purposes for which the writ is used, in effect and practice, as an original action. Where the object is to revive a judgment it cannot be said to be a new suit; it is a continuance of the old action, “and merely ancillary thereto” (Ellis v. Jones, 51 Mo. 180), notwithstanding it partakes of the nature of a new action, as before stated, in that it may be pleaded to. I think it apparent that when the writ is used to revive a judgment it is merely a further proceeding in the same action, and is based on the original judgment, which in this case we have seen was rendered on defendant’s personal appearance. Such writ is sometimes called a writ of execution. 2 Tidd’s Practice; Barrow v. Bailey, 5 Fla. 9. It is said in Phillips v. Brown, 6 Term. R. 282, to be merely a step towards execution on the original demand. And so we know that to be its end and use in practice. We, therefore, feel constrained to decline following the case in 26 Kan. The jurisdiction of the person in the original action was sufficient to sustain the after proceedings in revivor; provided such after proceedings were regular in themselves.

That they were regular in all particulars is clear. A writ of scire facias was issued, and a return nihil was made by the sheriff. An alias writ was then in due course issued, and another return nihil made. This, under the common law, was equal to a return of scire feci, that defendant had been warned. Barrow v. Bailey, 5 Fla. 9, and English and American authorities therein cited; 2 Tidd’s Practice; 1 Freeman on Executions, sec. 89, and authorities cited in support of text. We will presume the common law to be in force in Pennsylvania, and, therefore, that the proceedings to revive the judgment were proper.

But while two returns of nihil will amount to a notification to defendant and sustain a judgment of revival, yet, in point of fact the defendant by such proceeding has not been personally notified. And from this there follows, as a consequence, a right or privilege in the defendant which he would not have, had he been personally served with notice. That right is to have an audita querida, or, in this modern day, a motion, whereby he will be allowed to show after judgment of revival those things in his defense against an execution which he might have made at the hearing of the scire facias had he been personally served with notice. In other words, notwithstanding that two nihils amount to a scire facias and will support the revival, the defendant’s defense of his discharge from, or of, the original judgment will remain open to him. Authorities, supra; Wood v. Ellis, 10 Mo. 382.

Our conclusions as to this case on the record are these: That the statute of limitations began to run from the date of revival instead of the original judgment ; that the proceedings in Pennsylvania to revive the judgment being regular under the common law will support the revival so as to form a new period of limitation and support an action in this state, notwithstanding there was no personal service on defendant in Pennsylvania in the revival proceedings; that defendant may now show anything (except the statute of limitations) going to discharge him from the original judgment occurring since its rendition.

The judgment will be reversed and the cause remanded.

All concur.