83 Mo. App. 227 | Mo. Ct. App. | 1900
This is a scire facias to revive a justice’s judgment upon the affidavit of plaintiffs’ attorney, filed with the successor of the justice who rendered the original judgment. The writ was issued on May 1, 1898, citing the two defendants to appear on the twenty-first of said month, and show cause why the judgment should not be revived. The return of the officer shows service upon defendant Pickles and a non est as to defendant Thormond. The proceedings were dismissed on motion in the justice’s court, and an appeal taken to the circuit court, where on a trial of the motion to dismiss the writ, it appeared from the evidence filed in support, that the original judgment had been obtained on the twenty-eighth of February, 1885; that a transcript was filed in the circuit court of Franklin county, after which about one-half of the judgment was paid by defendant Thormond, who was thereupon released and discharged from any further liability on said judgment. It was further shown by the affidavit of plaintiff’s attorney that at the time of the beginning of this proceeding, and ever since, said Thormond has been a resident of the state of Arkansas. The motion to dismiss specified only the following grounds, to wit:
“Because this is a proceeding to revive a judgment rendered by a justice of the peace against H. N. Thormond and Julian Pickles, jointly, and this proceeding is here prosecuted only against said Pickles, and said Thormond has not*231 been summoned as a defendant, and in this action tbe court bas not acquired jurisdiction of tbe person of said Thurmond.”
The circuit court sustained this motion, and plaintiff appealed.
The ruling of the lower court was manifestly erroneous.
This was not an independent suit brought upon a justice’s judgment as a cause of action. On the contrary, as stated in Coomes v. Moore, 57 Mo. 338, it “is only the continuation of a former suit and not an original proceeding,” hence it is not the commencement of an action to which the statute of limitations of five years can be applied. This essential distinction between the revival of a judgment by scire facias and the institution of a suit upon the judgment for the recovery of another judgment, is well settled. The general statute of limitations applicable to original actions have no application whatever, to a scire facias to revive a justice’s judgment under our statutes, which is governed exclusively by the special statutes limiting the time within which such revivors may be had under the statutory proceedings prescribed for that purpose. At first there was no limitation, upon the right to revive a justice’s judgment by scire facias. Subsequently it might be done in twenty years, which was the rule in 1885, when the original judgment in this case was obtained; henceforth the limitation is ten years. R. S. 1889, sec. 4028; R. S. 1889, sec. 6296; Humphreys v. Lundy, 37 Mo. 320; Sublet v. Nelson, 38 Mo. 487; Coomes v. Moore, supra; Corby v. Tracy, 62 Mo. 511; Kincaid v. Griffith, 64 Mo. App. 672; Sutton v. Cole, 73 Mo. App. 518; Tracy v. Whitsett, 51 Mo. App. 149; Cranor v. School District, 52 S. W. Rep. 232; Armstrong v. Crooks, 83 Mo. App. 141. Hence there is no merit in the contention in respondent’s brief that the statute of limitations of five years applied to the present proceeding, even if the question could be raised
Judge Biggs regards the “discussion in this opinion as to the statute of limitations as dicta and dissents from it,” but concurs in the view that Thormond was not a necessary party to the scire facias.
