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Elliott v. Cockrell

Missouri Court of Appeals, Eastern District, DIVISION FIVE
Apr 8, 1997
943 S.W.2d 328 (Mo. Ct. App. 1997)

Summary

finding the court lacked authority to determine the amount owed on the judgment, and issues relating to computation of the amount remaining to be paid should be left for proceedings at the time of execution

Summary of this case from Alamin v. Alamin

Opinion

No. 70771

OPINION FILED: April 8, 1997

APPEAL FROM THE CIRCUIT COURT OF LINCOLN COUNTY, HONORABLE PATRICK S. FLYNN.

Lee R. Elliott, Troy, for Appellant.



Appellant, Lee R. Elliott, appeals from the judgment of the trial court reviving the judgment against respondent, Charles R. Cockrell, to the extent of $1,908.21, the amount remaining unpaid on a judgment of $2,206.75. We reverse and remand with directions.

In July 1986, Elliott brought an action against Cockrell seeking $2,206.75 for attorney's fees for services rendered. On August 7, 1987, Cockrell consented to the entry of judgment against him in the amount of $2,206.75 plus costs. On April 19, 1996, Elliott filed an application for a writ of scire facias to revive the August 7 judgment which allegedly remained unsatisfied. After a hearing, the trial court entered judgment reviving the judgment in the amount of $1,908.21. In computing this figure the court subtracted payments received through garnishments, less costs of garnishments, from $2,206.75, the amount of the original judgment, and did not add any accrued interest.

In his first point, Elliott contends the trial court erred in reviving the judgment in the amount of $1,908.21, because this figure is inaccurate. He argues that the court on an application for a writ of scire facias needs only to recite that the judgment is "still in effect for an unspecified amount."

A plaintiff may revive a judgment within a period of ten years by a writ of scire facias. § 511.370 RSMo 1994; see also Rule 74.09(a). A proceeding in scire facias is not an original action, but is a special proceeding in continuance of and ancillary to the former suit in which the judgment was obtained. State ex rel. Silverman v. Kirkwood, 239 S.W.2d 332, 334 (Mo.banc 1951). Scire facias is merely supplementary to aid in the recovery of the debt evidenced by the original judgment.Id.

A scire facias proceeding is one wherein a judgment debtor may come into court and show cause why the original judgment should not be revived. Kirkwood, 239 S.W.2d at 334-335;see also Rule 74.09(b). The defenses which the debtor may interpose in a scire facias proceeding are limited, however; and include the defenses either that the judgment does not exist or that it has been satisfied. 46 Am. Jur. 2d Judgments § 425 (1994).

In Missouri, the judgment upon a scire facias proceeding is not a new judgment but merely extends the life of the old judgment and authorizes execution to issue. Kirkwood, 239 S.W.2d at 334. Scire facias is designed to revive the judgment itself and to give it new vitality. Id. at 335.

Thus, the only pertinent issues in a scire facias proceeding to revive a judgment are whether the judgment creditor initiated the proceeding within the prescribed time of ten years; whether service, either personal or by publication, was obtained on the judgment debtor; whether the judgment existed; and whether the judgment was satisfied. Upon a show cause order, the judgment debtor may challenge the scire facias proceeding by raising any one of these defenses. If these issues are resolved in favor of the judgment creditor, however, the court simply grants the writ to revive the judgment.

In the instant action, there were no issues regarding the existence of the judgment, service of process, or initiation of the proceeding within the ten-year period. Although the record is sparse on the issue, Cockrell apparently attempted to establish that the judgment was partially satisfied through garnishments. Partial payment by the judgment debtor is not an available defense to be raised in a scire facias proceeding. The trial court should have revived the judgment in its original principal amount. There was no need and the court lacked authority to determine the amount owed by Cockrell by deducting any sums paid from the amount of the original judgment. Such computations are left to a proceeding at the time of execution. The trial court erred in reviving the judgment in an amount less than the original judgment of $2,206.75. Elliott's first point is granted.

In his second point, Elliott contends the trial court erred in disallowing post-judgment interest on the ground that a consent judgment does not bear interest. In view of our holding on point one, the second point is moot.

The judgment of the trial court is reversed and the cause is remanded with directions to the trial court to revive judgment in the amount $2,206.75, the amount of the original judgment.

Clifford H. Ahrens, C.J. and Kent E. Karohl, J.: Concur

OPINION SUMMARY

Appellant appeals from the judgment of the trial court reviving the judgment against respondent to the extent of $1,908.21, the amount remaining unpaid on a judgment of $2,206.75.

REVERSED AND REMANDED WITH DIRECTIONS.

DIVISION FIVE holds : The trial court erred in reviving the judgment in an amount less than the original judgment of $2,206.75.


Summaries of

Elliott v. Cockrell

Missouri Court of Appeals, Eastern District, DIVISION FIVE
Apr 8, 1997
943 S.W.2d 328 (Mo. Ct. App. 1997)

finding the court lacked authority to determine the amount owed on the judgment, and issues relating to computation of the amount remaining to be paid should be left for proceedings at the time of execution

Summary of this case from Alamin v. Alamin

reversing and remanding an order reviving judgment in a reduced amount because "there were no issues regarding the existence of the judgment, service of process, or initiation of the proceeding within the ten-year period," and judgment debtor's argument that the judgment was partially paid was not an available defense to revival

Summary of this case from Dean Mach. Co. v. Rigoli

reversing and remanding for revival of judgment where "there were no issues regarding the existence of the judgment, service of process, or initiation of the proceeding within the ten-year period," and judgment debtor's argument that judgment was partially paid was not available defense to revival

Summary of this case from Capitol Fin. Grp., LLC v. Bray
Case details for

Elliott v. Cockrell

Case Details

Full title:LEE R. ELLIOTT, Appellant, v. CHARLES R. COCKRELL, Respondent

Court:Missouri Court of Appeals, Eastern District, DIVISION FIVE

Date published: Apr 8, 1997

Citations

943 S.W.2d 328 (Mo. Ct. App. 1997)

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