165 Mo. App. 412 | Mo. Ct. App. | 1912
On the 16th of January, 1909, Marceline R. Reyburn and Frederick G. Ziebig, as executors of the estate of the late Judge Valle Reyburn sued out, from the circuit court in which it had been rendered, a scire facias to revive a judgment rendered May 15, 1899, in favor of Judge Reyburn and against Eugene W. Handlan for $2000. It is set out
The affirmative defenses were all denied in a reply. It appears by the record entries, as set out in the abstract, that on motion of Judge Reyburn’s representatives, W. R. Faribault and John Bull, as executors of the estate of Lucas, deceased, had been joined as parties to the application at the December, 1909, term of the court. The cause came on for trial at the February, 1910, term and was submitted to the court, a jury being waived. The court found for the applicants and judgment was rendered in their favor, reviving the judgment in the names of the representatives of Reyburn and Lucas to the amount of $1610.90', and costs, with interest at the rate of eight per cent per annum, that being the amount of interest which the original judgment bore, and awarded execution accordingly.
Defendant filed a motion for a new trial. This was overruled and exception saved. No motion in arrest of judgment was filed. Defendant, excepting to
The points made and argued by learned counsel for appellant are these:
(1) A judgment cannot be revived through proceeding's upon a writ of scire facias in the name of the assignees. Such a judgment is void.
(2) .Valle Reyburn in his lifetime had actually assigned the judgment to Lucas, and left nothing to be revived in the name of his executors, hence the proceeding and judgment were void.
. (3) The credits introduced in evidence were proper under the plea of payment.
In their reply brief these same counsel make other contentions which it is well to notice. They are as follows:
(1) Granting that the amendment to section 3748, Revised Statutes 1899, was intended to apply to the revival of a judgment by scire facias — which counsel deny — it is argued that this does not correct the vice in the judgment at bar, because that judgment awards execution in favor of the assignee, contrary to section 2158, Revised Statutes 1909.
(2) The amendment to section 3748, Revised Statutes 1899, made by Act of March 7, 1907, does not authorize revival on scire facias in the name of the assignee, it being argued that “while it is true that scire facias is a proceeding, it is not a -proceeding on a judgment. It is a proceeding continuing the original action and ancillary thereto.”
(3) While objection was interposed to the introduction in evidence of the assignment to the executors of Lucas, even if it is held that the objection did not reach the point, it is immaterial, for the- error is jurisdictional and the judgment entered is a nullity, for it is “beyond the scope of such a proceeding (by scire facias) to enter a judgment reviving a cause in favor
(4) The evidence showed that Reyburn had parted with his interest in the judgment in his lifetime. “The original judgment bore date May 15,1899. Scire facias proceedings were instituted January 16, 1909. The ten-year statute had expired before the scire facias proceedings came on for hearing.”
It will be observed that the substantial points are that the judgment cannot be revived through proceedings upon a writ of scire facias in the name of the assignees, and that the court should not have ordered execution to issue in the name of the assignees.. It is also argued that the amount found as due on the judgment is excessive.
Counsel cite many authorities in support of the proposition that scire facias to revive a judgment cannot issue in the name of an assignee. The trouble with these authorities is that they relate to cases which arose and were determined prior to the amendment made to section 3748, Revised Statutes 1899, by the Act approved March 7, 1907 (Acts 1907, p. 320), the section as amended now appearing as section 2159, Revised Statutes 1909. That section prior to the amendment made by the Act of-1907 read as follows: “Any action which the plaintiff in such judgment might have thereon may be maintained in the name of the assignee.” As amended in 1907, and as in force when this proceeding was instituted, it reads: “Any action or other proceeding, which the plaintiff in any judgment might have thereon, may be maintained in the name of the assignee.” That is to say, section 3748, Revised Statutes 1899, was amended by adding to it, after the word “action,” the words, “or other proceeding.” It had been decided by our Supreme Court in many cases, particularly in Bick v. Tanzey, 181 Mo. 515, 80 S. W. 902, that neither by the common law nor
There is no question but that our Supreme Court, as well as the other appellate courts of our state, have always held that the proceeding by scire facias to revive a judgment was not a new or an original action, but a continuance of the former suit. [See Gliddenfelt Manufacturing Co. v. Robinson, 163 Mo. App. 488, 143 S. W. 1111, and authorities there collated.] But all the cases recognize it as a “proceeding,” which, according to Black, Law Dictionary (2 Ed.), in a general sense, is the form and manner of conducting juridical business before a court or judicial officer, including all possible steps in an action from its commencement to the execution of judgment. “In a more particular sense, any application to a court of justice, however made, for aid in the enforcement of rights, for relief, fox redress of injuries, for damages, or for any remedial object,” is a “proceeding.”
In Morewood v. Hollister, 6 N. Y. 309 l. c. 320 the New York Court of Appeals held that the word “proceedings” covers the steps or measures taken in the course of an action, including all that are taken, ‘ ‘ the proceedings” in a suit embracing all matters that occur in its progress judicially.
Learned counsel for appellant, as' will be seen by quotations of their points, have themselves, and' at least twice, referred to this as “a proceeding.”
Under this section as amended, as it appeared that the judgment here sought to be revived had been assigned, the proceeding by scire facias to revive it could thereafter be carried on in the name of the assignee. It was not necessary to join the representatives of the original plaintiff, but that having been done without objection or exception saved, it is too late to assail it after judgment. If we were to apply the rules governing pleadings to this case and treat an application for scire facias to revive a judgment as a petition, misjoinder of parties can only be taken advantage of by demurrer. [Sections 1800 and 1804, Revised Statutes 1909.]
The application to revive a judgment by scire facias is not treated as a petition. The scire facias to revive it may issue on mere motion, a motion more in the form of a praecipe to the clerk than in the form of a petition. [Bick v. Vaughn, 140 Mo. App. 595, 120 S. W. 618.] We do no.t hold, however, that a petition, if one is filed, is improper: what we do hold is that the rules applicable to a petition are not applicable to test the sufficiency of the motion.
It appears that after the institution of this proceeding, the executors of Judge Reyburn, with the approval of the probate court, had formally executed an assignment of this judgment to the executors of J. B. C. Lucas. A year after the commencement of these proceedings by scire facias, counsel for the representatives of Judge Reyburn applied to the court for leave to join these representatives of Lucas as parties. Leave of court was granted and the executors of Lucas, as
The claim that the Statute of Limitations was a bar because the judgment of revivor was rendered after the lapse of ten years, is without any merit. The claim that Judge Reyburn had assigned the judgment in his lifetime is unproven. Evidence offered and introduced by appellant to show that Judge Reyburn was not the real owner of the note on which the original judgment was founded, and that he had not credited it with payments made before rendition of that judgment, should not have been admitted. The judgment concluded all that. [Glidden-Felt Manufacturing Co. v. Robinson, supra.]
The case was heard by the court, a jury being waived, and testimony introduced as to the payments, the fact of payment being one of the few questions open to inquiry in this proceeding. It became a matter for the determination of the trial court, on the evidence of payments before it, to find the amount of
Tbe remaining point, that it was error for the court, in rendering judgment, to also order execution to issue in the name of all these parties as if they were plaintiffs, has no merit. It is true that our statute (section 2158, Revised Statutes 1909) provides that in case of an assignment of a judgment, execution shall issue in the name of the original plaintiff but shall be indorsed by the clerk issuing it to be for the use of the assignee. That would apply if the question had arisen over an execution issued on the original judgment, that judgment assigned. But this is not such a case. The judgment here sought is one of revivor of that judgment; the judgment rendered is one of revivor. There was only one judgment in this ease before the court and that was in favor of Valle Reyburn. That is the judgment which was revived to the amount that the court found was due upon it, and in favor of all parties before the court applying for its revivor.
It appears that the executors of Mr. Lucas still have assets on hand, in which, if realized on, defendant has an interest. However that may be, it does not affect the right to have the judgment revived. It will be time enough to determine the right of that, if these executors fail to properly account to defendant for moneys they may hereafter realize and in which he has an interest.
We find no error to the prejudice of defendant in the proceedings at the trial or in the result arrived at. The judgment of the circuit court is affirmed.