Tracy v. Whitsett

| Mo. Ct. App. | Nov 14, 1892

Ellison, J.

Judgment was rendered against defendant before a justice of the peace of LaFayette county on June 1, 1872, and execution issued thereon on that day. June 24, a transcript of this judgment was filed with the circuit clerk of the county. More than ten years thereafter, on July 26, 1886, application was made in the justice’s court to revive said judgment. An affidavit was filed, as required by section 6291, Revised Statutes, 1889, and a citation to defendant issued thereon. Matters were then delayed by a writ of prohibition until such writ was quashed, when on January 26,1887, the judgment was revived, and execution issued thereon to the constable. The constable’s return did not show when he made it, but did say that he had made search and found no property of defendant. A transcript of this revived judgment was filed with the circuit clerk May 2, 1887. Execution issued on this revived judgment from the office of the clerk of the circuit court .of said LaPayette county, directed to the sheriff of Pettis county, December 21, 1891. A motion to quash this execution was made in the circuit court of the former county, which being overruled defendant appeals.

It is important to state that, at the time the execution in controversy was issued, the defendant was not a resident of LaPayette county. It is contended by defendant that .before the issuance of the execution in controversy there should have been one issued from the justice of the peace and returned nulla, bona. The statute on .this subject is as follows: “Sec. 6287. * * * But no execution shall be sued out of the court where the transcript is filed, if the defendant is a resident of the county, until an execution shall have been issued by the justice, directed to the constable of the township in which the defendant resides, if there be one in such township, and, if not, to any constable in the county, and returned that the defendant had no goods or chattels whereof to levy the same.”

The proper construction of this statute is, that there shall first be an execution from the justice of the peace before one is issued by the circuit clerk, in cases where the defendant is a resident of the county at the time of issuing the execution. In this case defendant at that time was not residing in LaPayette county, and the fact that he had resided there when the judgment was originally obtained, or when revived, is of no importance. Nothing in the cases of Sachse v. Clingingsmith, 97 Mo. 406" court="Mo." date_filed="1888-10-15" href="https://app.midpage.ai/document/sachse-v-clingingsmith-8009496?utm_source=webapp" opinion_id="8009496">97 Mo. 406, and Jordan v. Surghnor, 107 Mo. 520, is contrary to this interpretation. So far as concerns this execution, since it was issued long after defendant had removed from LaFayette county, it was of no importance whether any execution had formerly issued from the justice of the peace.

II More than ten years intervened between the original rendition of the judgment and the revivor, but, as it was within twenty years, it was sufficient under section 6296. Formerly there was no limitation prescribed as to the revival of such judgments (Humphreys v. Lundy, 37 Mo. 320" court="Mo." date_filed="1866-02-15" href="https://app.midpage.ai/document/humphreys-v-lundy-8001829?utm_source=webapp" opinion_id="8001829">37 Mo. 320), but now a limit of twenty years has been enacted. So the filing of the transcript in this case was within three years after the judgment was revived before the justice, thus .bringing the case in harmony with the ruling in Pears v. Goff, 76 Mo. 92" court="Mo." date_filed="1882-10-15" href="https://app.midpage.ai/document/pears-v-goff-8007119?utm_source=webapp" opinion_id="8007119">76 Mo. 92. It is true that it was more than three years from the date of reviving the judgment before the justice when the execution issued from the clerk’s office; but this does not hurt the execution, as under section 6287, Revised Statutes, 1889, in our opinion, when the transcript is properly filed the judgment will support an execution the same as if it had been rendered ' by the circuit court at the date of filing the transcript, and an execution could, therefore, issue at any time within ten years, though the lien would expire in three years.

When a justice’s judgment is revived before him a transcript thereof may be filed with the circuit clerk at any time within three years (Pears v. Goff, supra), and when it is so filed it becomes as a judgment of the circuit court, its life and efficacy being the same. Its lien will run three years from the date of filing the transcript, and an execution may be issued any time within ten years from filing such transcript as provided in section 6020 for regular circuit court judgments. The transcript in this case was filed in the clerk’s office in less than three years from the revival, and the execution was issued within ten years, and was, therefore, properly issued. It was decided long ago that the limitation of three years prescribed by the statute, in which an execution could be issued on the justice’s judgment, only applied to an execution from the justice. Carpenter v. King, 42 Mo. 219" court="Mo." date_filed="1868-02-15" href="https://app.midpage.ai/document/carpenter-v-king-8002375?utm_source=webapp" opinion_id="8002375">42 Mo. 219.

Other suggestions made against the judgment are not considered tenable, and the judgment is, therefore,, affirmed.

All concur.