343 S.W.2d 75 | Mo. | 1961
This is a proceeding by scire facias to revive the judgment in this action. Rendered originally on July 7, 1949, it was for a sum in excess of $15,000, no part of which has ever been paid. Although entirely unnecessary to do so, yet the plaintiffs did, on June 18, 1959 (all references to dates are to the year 1959 unless otherwise not
The writ of scire facias combines both process and declaration or petition in .a single instrument, the general character of which “is that of a mandate to the sheriff, reciting the occasion upon which it issues, as, for example, an unsatisfied judgment * * * and directing him to make known to the parties named that they shall appear before the court at a given day to show cause, if any they have, why the plaintiff should not be allowed to take the steps desired by him in relation to the matter.” 47 Am.Jur., Scire Facias, § 30.
Those features of the procedure in scire facias proceedings here pertinent are thus cogently stated in Beattie Mfg. Co. v Gerardi, Mo., 214 S.W. 189, 191: “The writ may be applied for by petition, although it is unnecessary. The petition therefore serves no essential function. * * * At common law the writ served the double purpose of process and pleading. * * * Following the essential features of the procedure at common law, it has been the universal practice in this state to regard the writ as the first pleading on the part of the plaintiff which might be demurred to for insufficiency, or otherwise, or answered, and issues formed as in other, cases. Goddard v. Delaney, supra [181 Mo. 564, 80 S.W. 886]; Sutton v. Cole, 155 Mo. 206, 55 S.W. 1052.” See, also, Kennedy v. Boden, Mo.App., 231 S.W.2d 862, 866; Reyburn v. Handlan, 165 Mo.App. 412, 147 S.W. 846.
As we have just noticed, the writ may be applied for by petition, although it is not necessary, this because those matters and things that would ordinarily be necessary to aver in a petition appear in the writ itself. Indeed, the rule has been that in a proper case the writ may issue as of course out of the clerk’s office without leave of court being first obtained. Goddard v. Delaney, supra. See, in this connection, the specific authorization for the issuance of the writ on motion ex parte as provided by Civil Rule 74.36, which became effective April 1, 1960, V.A.M.R.
It is apparent that defendant, in attempting to conform to the requirements of the practice with reference to attacking
In the latter connection, and in further elaboration of the nature of a proceeding by scire facias, and as indirectly indicating our view that appellate review on the merits would avail defendant nothing, it may not be amiss to notice the following: The writ, when used to revive a judgment, is not a new action and is merely a further proceeding in the same action, and is based on the original judgment. “It is not even an ‘action’ within the legal meaning of the word. Hickox v. McKinley, 311 Mo. 234, 247, 278 S.W. 671. .It is [a] mere ‘special proceeding’ in continuance of and ancillary to the former suit in which the judgment was obtained. It is but supplementary to aid in the recovery of the debt evidenced by the original judgment. * * * A scire facias proceeding is one wherein the judgment debtor may come into court and file a pleading wherein he may show cause, if any he has, why the original judgment should not be revived. * * * If the writ of scire facias is issued prior to the expiration of the ten years from date of the judgment, the order of revival may be made after the expiration of such ten year period. [Citing cases.]” State ex rel. Silverman v. Kirkwood, 361 Mo. 1194, 1199—1200, 239 S.W.2d 332, 334-335.
Returning now to the question on which the appealability of the order turns, the conclusion is inescapable that, the court having refused to quash the writ, the way was then open for the defendant to have answered and obtained a trial on the merits. But this he did not do; instead, he appealed, and his appeal, being premature in any view that may be taken of the matter, must be, and it is, dismissed.