Sutton v. Cole

155 Mo. 206 | Mo. | 1900

MARSHALL, J.

This cause was certified to this court, under section 6 of the amendment to the Constitution, 1884, by the St. Louis Court of Appeals, because Biggs, J., deemed the opinion of the majority of that court to be contrary to the previous decisions in Milsap v. Wildman, 5 Mo. 425; State v. Hoeffner, 124 Mo. 488; Walsh v. Bosse, 16 Mo. App. 231; Wolff v. Schaeffer, 4 Mo. App. 367; Kratz v. Preston, 52 Mo. App. 251.

The case is this: On the 27th of September, 1881, Martin, administrator of Willhoeft, instituted a suit on a note (date and amount not stated) against Thomas A. Cole, James R. Young and Andrew Stephens. The docket entry of the justice states: “Total amount claimed, $283.58,” and that on the 14th of November, 1881, judgment was rendered for that amount, “with ten per cent compound interest from date.”

The plaintiff therein assigned the judgment to the plaintiffs herein, and they, in March, 1895, sued out a scire facias, to revive the judgment, before the successor to the justice'who rendered the original, according to the provisions of section 6288 et seq., Revised Statutes 1889. The defendant Cole was duly served with the citation (sec. 6292, R. S. 1889), appeared and filed an affidavit for a change of venue, which was overruled by the justice, and the judgment revived (sec. 6293, R. S. 1889), and upon the return of the execution, nulla bona, a transcript of the 'judgment was filed in -the office of the clerk of the circuit court of Lincoln county, an execution issued thereon from that court, which was levied on the lands of the defendant Cole. He thereupon filed a motion in the circuit court to quash the execution (the motion is not set out, nor its substance stated in the abstract of the record, and therefore we are not advised of the grounds on which it was based), the circuit court sustained the motion, and the plaintiffs properly made up the record, and thereafter sued out- this writ of error from the St. Louis Court of Appeals. The majority of that court held: first, that the judgment, for $283.58, was not void on its face because a justice’s jurisdiction at the time it was rendered was limited to one hundred and fifty dollars, exclusive of interest (sec. 2835, R. S. 1879); second, that parol testimony was properly admitted by the circuit court in aid of the jurisdiction of the justice, to show, the note being lost, that the note was for a sum less than one hundred and fifty dollars, and that the judgment included the principal and interest, compounded annually; and, third, that the application for a change of venue was properly denied by the justice of the peace. The judgment of the circuit court was therefore reversed and the cause remanded. Biggs, J., dissented on the ground that scire facias to revive a judgment is a civil action, and being such the defendant was as much entitled to a change of venue as in any other kind of an action. As the case comes here on the conflict of opinion .as to the right of the defendant to a change of venue, that question will be considered first.

I.

In Milsap v. Wildman, 5 Mo. 428, scire facias to revive a judgment was held to be an action, and therefore within the proceedings regulating any original action. Thiscase was followed by the St. Louis Court of Appeals, in Wolff v. Schaeffer, 4 Mo. App. l. c. 372; Simpson v. Watson, 15 Mo. App. l. c. 430; Walsh v. Bosse, 16 Mo. App. l. c. 233, 234.

But in Humphreys v. Lundy, 37 Mo. l. c. 323, it was held, per Holmes, L, that there is “a clear distinction made in the books between 'an action and a scire facias ,” and that a scire facias is “only a continuance of a former suit, and not an'original proceeding'.” lienee in that ease it was held that the statute of limitations did not'apply to such proceedings.

In Ellis v. Jones, 51 Mo. l. c. 187, Sherwood, J., said: “A scire facias to revive a judgment, is a judicial writ; is not a new suit, but is a continuation of the original action and merely ancillary thereto; does not operate to create a new lien, but to continue in force one 'already in existence; is simply a call or rule upon the debtor to show cause why execution should not issue; and if no cause is shown judgment goes that the plaintiff have execution.”

In Coomes v. Moore, 57 Mo. 338, the ruling in Humphreys v. Lundy, 37 Mo. 320, in reference to scire facias, was followed, but it was pointed out that the case then before the court was a suit on a foreign judgment, and not a scire- facias to revive a judgment, and therefore the statute of limitations applied. This ease accentuates the difference between a scire facias to revive a judgment and a new suit.

• In State v. Hoeffner, 124 Mo. 488, Burgess, J., said that a proceeding by scire facias upon a forfeited recognizance is a mere continuation of the original proceeding, and hence the defendant is not entitled to a trial ‘by jury. This was in a criminal case, but the learned judge said he had not overlooked Milsap v. Wildman, 5 Mo. 425, and Wolff v. Schaeffer, 4 Mo. App. 367, and while those cases were not expressly overruled, the case of Humphreys v. Lundy, 37 Mo. 320 (above quoted) was extensively quoted from, and clearly followed and approved, for he said: “We think the rule thus announced in harmony with our code and the understanding of the profession generally.”

In Kratz v. Preston, 52 Mo. App. 256, Ellison, J., said: “Where the object is to revive a judgment it can not be said to be a new suit; it is a continuance of the old action ‘and merely ancillary thereto/......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 a 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.”

The result is that Milsap v. Wildman, 5 Mo. 425, has never been followed by this court, but the contrary doctrine often declared, and that case in effect overruled. So to end all doubt and confusion, Milsap v. Wildman, 5 Mo. 425, is hereby expressly overruled. As Wolff v. Schaeffer, 4 Mo. App. 367; Simpson v. Watson, 15 Mo. App. 430, and Walsh v. Bosse, 16 Mo. App. 233, were predicated upon Milsap v. Wildman, supra, it follows that they can no longer be regarded as stating the law in this State.

Being only a continuation of the original action, and simply ancillary thereto, fit follows that there can be no change of venue allowed in a scire facias to revive a judgment, because there is no statute specially authorizing it, and the general statute in reference to change of venue has no application. In fact, section 6288, Revised Statutes 1889, excludes the idea of a change of venue, for it provides that the judgment must be revived “by the justice who rendered the same, or has control thereof” (meaning his successor in office).

This disposes of the point of difference between the judges of the St. Louis Court of Appeals on account of which this cause was certified to this court, and we might stop here, were it not for the mandate of the Constitution (sec. 6, Amendment 1884) that in such cases this court must rehear and determine the cause as in case of jurisdiction obtained by ordinary appellate process.

II.

It has long been the settled law in Missouri that the jurisdiction of courts of inferior jurisdiction and of courts that do not proceed according to the course of the common law, must affirmatively appear on the face of the proceedings. [State v. Metzger, 26 Mo. 65; Hansberger v. Railroad, 43 Mo. 196; Edmonson v. Kite, 43 Mo. 176; Schell v. Leland, 45 Mo. 289; Iba v. Railroad, 45 Mo. 469.] But it is not essential that jurisdiction should appear from the face of the record proper. [State v. Schneider, 47 Mo. App. 669.] It is sufficient if it appears from the entire record of the proceeding. [Sappington v. Lenz, 53 Mo. App. 44; Collins v. Kammann, 55 Mo. App. 464.] The fact that the amount sued for before a justice of the peace did not exceed his jurisdiction, may be shown by the papers ox cause of action on file. [Shanklin ex rel. v. Francis, 67 Mo. App. 457.] If the proceedings before inferior courts are not entered in books, they may be proved by the officers of court. [1 Greenl. on Evid. (14 Ed.), sec. 513.] In State v. Hockaday, 98 Mo. 590, a justice of the peace was permitted to identify the papers in a cause and to testify to the proceedings had in the case, the docket being silent as to such matters. In this case the cause of action — the note — sued on was lost, and the circuit court heard testimony as to its contents. The lost paper or note could have been supplied by pursuing the remedy afforded by section 4560 et seq., Revised Statutes 1899. In such a case, parol testimony would have been admissible to prove its contents. This course was not pursued, but there is no difference in principle between admitting parol testimony in such a case and in a case where such testimony does not even tend to contradict the record. This case, however," does not fall within that rule. At the time this action was begun the justice of the peace had jurisdiction “when the sum demanded, exclusive of interest and costs, does not exceed one hundred and fifty dollars.” [See. 2835, R. S. 1879.] At that time section 2844, Revised Statutes 1879, required every justice of the peace to “keep a docket, in which he shall enter......a brief statement of the nature of the plaintiff’s demand, and the amount or description and value of the property claimed,” etc., etc.

The docket entry kept by the- justice of the peace in this case, after stating the title of the cause, is as follows:

“Action on note dated.......Total amount claimed, $283.58,” It then recites that, “On the 27th day of September, 1881, the plaintiff, files note and demands that a summons be issued against the defendant, which is done,” and also that judgment was rendered “for $283.58, with ten per cent compound interest from date.”

It will be observed that in the Hockaday case, supra, parol evidence was held admissible to prove a fact which the justice was required to note on his docket, but as to which the docket was silent, on the ground that such evidence did not contradict the record. The St. Louis Oourt of Appeals applied that decision to this case, and in so doing that court committed error, for the record of the justice in this case was not silent as to the amount claimed, and which the statute required to be entered on his docket. On the contrary that record recites that: “Total amount claimed, $283.58.” That case, therefore, has no application to this case, and there is no ambiguity in this case which parol evidence might be permitted to explain, as was done in Roach v. Coal Co., 71 Mo. 398, in order to uphold the judgment. Here the record spoke the fact which the statute commanded it to speak, and parol evidence was not admissible to contradict, explain away, or wary or impeach it.

The St. Louis Oourt of Appeals, however, helped out the difficulty by holding that although the record stated that the amount sued for was $283.58, it might be that this included the principal of the note, with ten per cent interest compounded annually. This supplies by argument what it was inadmissible to prove as a fact, as against the recital of the record. In Batchelor v. Bess, 22 Mo. 402, Leonard, J., held that if the amount claimed before a justice of the peace was not stated, the amount the plaintiff accepted jugdment for must be taken as the amount in dispute, and although on appeal in the circuit court the plaintiff remitted the excess over the justice’s jurisdiction, it did not have the effect of giving the justice jurisdiction of the subject-matter. The case at bar is even stronger, for the judgment was not only for an amount in excess of the jurisdiction of the justice^ but the record recited that the amount claimed was the same as the judgment. The record shows no data or fact from which it can be legally inferred that any portion of the amount claimed and for which the plaintiff recovered judgment was interest compounded annually, and in the face of the record recital and in the absence of anything apparent from th© face of the proceedings — e. g., the note itself — it is not proper for a court to speculate as to the fact or to supply facts by arguments not based upon such matters as the court can take notice of. It was at all times within the power o'f the plaintiff to supply the lost note, by pursing the remedy afforded by the statute, and thereby have shown th© true fact as to the amount claimed by the proceedings in the case before the justice. This would not have contradicted the record.

Eor these reasons the judgment of the St. Louis Court of Appeals is reversed, and that of the circuit court of Lincoln county quashing th© execution based upon the judgment of the justice of the peace, is affirmed.

All concur, except Robinson, J., absent.