State v. Hoeffner
28 S.W. 1
Mo.
1894
Check Treatment
Burgess, J.

On the ninth day of February, 1893, there was duly issued from the office of the clerk of the criminal court for the city of St. Louis, a scire facias against thе defendant, which recited that on the thirtieth day of April, 1892, the defendant had signed a bond to the state of Missouri in the court оf criminal correction of said city as the security of one Lee Qua Lang (who then stood charged in said court of criminal correction with having committed a felony) for his, Lang’s appearance in the court of criminal cоrrection, on the twelfth day of May, 1892; that default was made in said court on said last named day, by said Lang, which was certified tо the St. Louis criminal court, and judgment of forfeiture rendered thereon. The writ commanded defendant to appear on the return day thereof, and show cause why the state of Missouri should not have execution. Defendant filed answer to the scire facias, putting in issue all the recitals and allegations therein contained.

On the second day of October, 1893, the cause was ■ called for trial in the criminal court, when defendant requested and demanded a trial by jury, which was refused by the court, аnd he saved ‍​‌‌​‌‌​​​‌‌‌​‌‌‌‌‌​​​​‌​​​​‌‌​‌‌‌​​​‌​​​​​​​​​‌‌‍his exceptions. The court then proceeded to hear the case and made its finding in favor of thе state. From the finding and judgment defendant appealed. The only point urged upon the *490attention of this court, is the aсtion of the trial court in refusing defendant a trial by jury.

Section 2131, Revised Statutes, 1889, reads as follows: “An issue of fact in an action for the recovery of money only, or of specific real or personal property, must be tried by a jury, unless а jury trial be waived or a reference ordered as hereinafter provided.”

"Whatever may have been said in оther jurisdictions with respect to the nature of the proceeding by scire facias on a forfeited recognizance, whether сivil or a continuation of the original proceeding, the holding in this state ‍​‌‌​‌‌​​​‌‌‌​‌‌‌‌‌​​​​‌​​​​‌‌​‌‌‌​​​‌​​​​​​​​​‌‌‍has been, that it is a mere continuation of аn original proceeding to enforce the collection of a debt confessed. State v. Randolph, 22 Mo. 474; State v. Heed, 62 Mo. 559. See, also, Lawton v. State, 5 Tex. 272; 2 Bouvier’s Inst., sec. 3721, chap. 27.

The writ is a common law writ. It is nоt the commencement of a civil or new action within the meaning of the code, but the writ recites the recognizance and judgment of forfeiture, and requires the parties against whom issued to appear in court at the next regular term, and show cause, if any they can, why final judgment shall not be entered against them for the amount of the recognizance so foi’feited, and execution issued therefor. The practice has been in this state, and many others, to plead to the writ, although our code is silent as to the course to be pursued with respect to a scire facias issued upon a forfеited recognizance. Every defense which could be made by way of plea or demurrer to a petition may also be made to the writ, and when demurred to, the demurrer goes to the entire record. The writ may be amended when necessary, as pleadings in civil cases, the only difference being that where a demurrer is filed to any pleading in an ordinary civil action, it only goes to the face of such pleading, while in case of a demurrer to a scire facias issued *491upon a forfeited recognizance it goes to the whole record. State v. Randolph, and State v. Heed, supra.

This is not a civil action within the meaning of the code for the recovery of money. Instead of a summons being issued requiring the defendant to аppear and answer a petition, as in a civil action, a scire facias issues to the defendant requiring him to show cause why a judgmеnt already confessed, interlocutory in ‍​‌‌​‌‌​​​‌‌‌​‌‌‌‌‌​​​​‌​​​​‌‌​‌‌‌​​​‌​​​​​​​​​‌‌‍its effect, should not be made final, and execution issued thereon, the causes generally shown being nut tiel record, release or accord and satisfaction, no one of which, nor all of them, convеrt the proceeding into an action,' which is said to be “a legal prosecution in an appropriate сourt by a party complainant against a party defendant to obtain the judgment of that court in relation to somе rights claimed to be secured or some remedy claimed to be given by law to the party complaining. ” 1 Am. and Eng. Encyclopedia of Law, 178; 1 Wait’s Actions and Defenses, 10. It is only in such cases that the parties are entitled to trial by jury in civil actions, unless the right is given by statute as'in case of inquiry of damages upon the dissolution of an injunction bond, and cases of like character. If the proceeding had been by suit brought upon the recognizance bond, as is the practice in somе states, then the rule would be different, and the case triable by jury.

We have not overlooked the case of Milsap v. Wildman, 5 Mo. 425, in which it is held that a scire facias is an action, also-a suit; and Wolff v. Schaeffer, 4 Mo. App. 367, in which the same rule is announced, and in which it is further held that such cases are triable by jury unless the same be waived. To the same effect is State v. Posey, 79 Ala. 45.

The Milsap case was a proceeding by a scire facias to revive a judgment in a civil suit, and the Wolff case was a proceeding by scire facias in the probate court *492under the statute against the administrator upon his bond, and ■ are not, therefore, controlling authority in this case. In a criminal case a proceeding on a forfeited recognizance by scire facias is, as has been said, but the continuation of a proceeding already commenced, ‍​‌‌​‌‌​​​‌‌‌​‌‌‌‌‌​​​​‌​​​​‌‌​‌‌‌​​​‌​​​​​​​​​‌‌‍while in a civil case it is more like an original action.

In Humphreys v. Lundy, 37 Mo. 320, which was a proceeding to revive a judgment rendered by a justice of the peace, Holmes, J., in speaking for the court, says: “A clear distinction is made in the books between an action and a scire facias. Mr. Ohitty, treating of debt on judgments, speaks of ‘the remedy by scire facias’ as also frequently adopted, on which damages are not recoverable for detaining a debt, and therefore he considers it more judicious to proceed by action upon a recognizance of bail, than by scire facias, which is ‘only a continuance of a former ‍​‌‌​‌‌​​​‌‌‌​‌‌‌‌‌​​​​‌​​​​‌‌​‌‌‌​​​‌​​​​​​​​​‌‌‍suit, and not an original proceeding. ’ ” 1 Chitty on Pleadings, 127,299; M’Gill v. Perrigo, 9 Johns. 259; Brown v. Harley, 2 Fla. 159; Ellis v. Jones, 51 Mo. 187. We think the rule thus announced in harmony with our code and the understanding of the prоfession generally.

From what has been said, it necessarily follows that section 28, article 2, state constitution, which prоvides that “the right of trial by jury as heretofore enjoyed shall remain inviolate,” has no application to this case. State ex rel. v. Vail, 53 Mo. 97. The judgment is affirmed.

All of this division concur.