Opinion
May 18, 1929.
1. DISCONTINUANCE: Alias Summons: Non Est Return: Renewed Process: Intervening Terms. A discontinuance does not result where plaintiff fails to cause an alias writ of summons to be issued at the return term, and successive pluries writs at every succeeding term, until defendant can be found and served. If no writ was issued between the date of the first non est return and the date of the issuance of the last writ, though a number of terms had intervened, such fact will not affect the validity of a judgment rendered upon a service of the last writ issued. [Disapproving Weaver v. Woodling (Mo. App.), 272 S.W. 373.]
2. ____: Keeping Process Alive. It is no longer the law, either under modern procedure or our statutes, that processes must be continued and renewed from term to term, or sued out at each term, in order to keep alive a cause duly filed. [Disapproving Weaver v. Woodling (Mo. App.), 272 S.W. 373.]
3. ____: ____: Non Est Return: Alias Writs: Intervening Term. Plaintiff obtained judgment against defendants for the sum of fifteen hundred dollars on March 20, 1915. The judgment remaining unsatisfied, plaintiff on March 14, 1925, filed a petition to revive it, which was an application for the suing out of a writ of scire facias, and on that day a writ of scire facias was issued, directed to the sheriff, returnable to the May term, upon which the sheriff made a not-found return to the May term, and during that term the court made an order for an alias writ, returnable to the October term, and continued the case. At the October term, the court ordered another alias writ, returnable to the May term, 1926, and under that order the clerk on January 27, 1926, being the October term, 1925, issued another or alias writ, returnable to said May term. The regular February term intervened between the October and May terms, and no alias writ was issued returnable to the February term, 1926, for the reason that it began in less than fifteen days after January 27th, but at that term the court duly entered an order continuing the case to the May term. The alias writ issued in January, 1926, was served upon defendants on April 27, 1926, and on the return of that writ showing proper service judgment reviving the original judgment and the lien thereof was entered. Held, that the cause was not discontinued because no alias writ was issued at the February term, or because process was not renewed at each term succeeding the non est return made at the May term, 1925, but the court had jurisdiction at the May term, 1926, to render the judgment.
4. CONTINUANCE: General Order. Discontinuance results where there is necessity for an order of continuance to be promptly entered, and none is made. It is not absolutely necessary to enter a continuance in every particular case; a general continuance order of all cases undisposed of at the end of the term will prevent a discontinuance of any of them, and an alias writ of summons is not necessary to keep in court and alive a cause in which a not-found return has been made.
Corpus Juris-Cyc. References: Continuances, 13 C.J., Section 1, p. 122, n. 1. Dismissal and Nonsuit, 18 C.J., Section 2, p. 1146, n. 11, 15; Section 136, p. 1204, n. 69; Section 137, p. 1204, n. 72; p. 1205, n. 75.
Transferred from St. Louis Court of Appeals.
AFFIRMED.
Eaken Hagater and Stahl Andrews for appellant.
(1) The alias writ was improperly issued, not being issued at the term of court to which the original writ was made returnable. The record discloses that on March 14, 1925, a petition for writ of scire facias to revive the judgment in the case was filed in the clerk's office; a writ was thereupon issued, addressed to the sheriff, and made returnable to the May term; that a non est return was made thereon; that the May term was suffered to elapse, and that not until the October term, 1925, was an alias writ issued, returnable to the May term, 1926. Weaver v. Woodling (Mo. App.), 272 S.W. 373; Mason v. Ry. Co., 226 Mo. 212. (2) Because plaintiff permitted a chasm to occur by failure to renew the process (writ of scire facias) regularly from term to term until service was had. Authorities supra. (3) Because there was no cause of action pending at the time the default judgment was rendered. The record shows that upon service of this writ upon defendants, the court on December 6, 1926, at the regular October term, 1926, rendered a judgment of revivor, by default, and ordered that judgment be revived against both defendants. That on January 8, 1927, at said October term, for good and sufficient reasons appearing to the court, such judgment was ordered set aside; and on the same date, without either petition for writ, or motion for issuance thereof, or existence of writ of scire facias, the court rendered another default judgment, reviving the judgment against both defendants. These proceedings were in direct conflict with Sec. 1557, R.S. 1919. Armstrong v. Crooks, 83 Mo. App. 141. (4) The alias summons was void, and issued without lawful authority. The record shows that on January 27, 1926, alleged alias writs of scire facias were issued out of the clerk's office directed to the sheriff, commanding him to summon both defendants to appear at the May term, 1926, and show cause why judgment should not be revived against them; that these writs were served on April 27, 1926. There is no such thing as an alias writ of scire facias. On the contrary, revivor proceedings are a mere continuation of the original suit; the writ may issue on motion as well as by petition, and the writ itself (not petition for writ) is the foundation of an action for revivor. In this case the writ of scire facias, by virtue of which the Ferber judgment was revived, was issued nearly eleven years after rendition of judgment; that is to say, issued on January 27, 1926, and therefore without authority of law. Secs. 1557, 1564, R.S. 1919; Blattio Mfg. Co. v. Girard (Mo.), 214 S.W. 189; Bick v. Vaughn, 140 Mo. App. 595; Hickok v. McKinley (Mo. App.), 236 S.W. 1068. Section 1557 provides that, no writ of scire facias shall issue after the expiration of ten years from rendition of judgment. The case of Blattio Mfg. Co. v. Girard, supra, declares that the writ is, in effect, merely an application for execution about to become dormant; that such application may be by petition, but need not be. Section 1564 forbids the issuance of an execution after ten years from the rendition of judgment. Burton v. Delaplane, 25 Mo. App. 376. (5) The court had no jurisdiction to render this judgment. Cases supra. (6) The record shows on its face that the court had no jurisdiction over the defendants. A judgment of revivor based on a writ of scire facias issued more than ten years after the rendition of judgment was void. The court had lost jurisdiction, by limitation, both over the defendants and the subject-matter of the action. Secs. 1557, 1564, R.S. 1919.
Theodore C. Bruere and Hensley, Allen Marsalek for respondent.
(1) It is not necessary, in order to keep a suit alive or to prevent a "discontinuance," that a plaintiff shall cause an alias writ to be issued at the return term, and successive pluries writs at every succeeding term, or to enter continuances at each term until the defendant can be found and served. If no writ is issued between the date of the return of the first not-found and the date of the issuance of the last, it will not affect the validity of the judgment, though a number of terms intervene. In such case, under the modern or reformed practice, the plaintiff suffers no discontinuance of the suit. Sec. 1550, R.S. 1919; Parsons v. Hill, 15 App. D.C. 532 (District of Columbia Appeals); Bliss v. Duncan, 44 App. D.C. 93. (2) Under the facts of this case, the case is not within the ruling of Weaver v. Woodling, 272 S.W. 373, relied upon by appellants, even were that ruling the law. (3) The writ of scire facias issued January 27, 1926, less than fifteen days prior to the beginning of the February term, 1926, was properly made returnable to the May term, 1926, and there was no "chasm" in the proceedings by reason thereof. Secs. 1183, 1184, 1212, R.S. 1919. (4) The suing out of the original writ of scire facias on March 14, 1925, was the commencement of the suit to revive the judgment. And, as this was less than ten years after the rendition of the original judgment, and the suit to revive was kept alive until the rendition of the final judgment of revivor, the action was not barred by limitations. Sec. 1182, R.S. 1919; State ex rel. Brown v. Wilson, 216 Mo. 292; Hydraulic Press Brick Co. v. Lane, 198 Mo. App. 438; McGrath v. Railway, 128 Mo. 1. (5) Appellants have no standing in this court, in any event, to contend that at the time of the judgment of revivor plaintiff's right to revive was barred by limitations, for the reason, if none other, that this question was not raised either in appellants' motion to set aside the judgment or in their previous motion to dismiss the cause. An assignment of error not called to the attention of the lower court in the motion for a new trial is not before the appellate court for review. Fernandes Grain Co. v. Hunter, 217 Mo. App. 186; Daggett v. Car Foundry Co., 284 S.W. 856; Snooks v. Sebier, 278 S.W. 1084. (6) In all cases, except ejectment, any statute of limitations, or limitation as to time in which to sue, to be available, must be specifically raised by demurrer or answer; otherwise, the same is waived. Stevenson v. Smith, 189 Mo. 447; Linn County Bank v. Clifton, 263 Mo. 201; Johnson v. Ragan, 265 Mo. 420; McPherrin v. Lumbermen's Supply Co., 211 Mo. App. 385; Murphy v. De France, 105 Mo. 53; Knisely v. Leathe, 256 Mo. 359; Am. Radiator Co. v. Plumbing Heating Co., 277 Mo. 548. And, consequently, we might, if need be, disregard all proceedings prior to the issuance of the last writ of scire facias. If that writ be regarded as an original writ, the judgment is perfectly valid, since appellants, though served with this writ, raised no question below as to limitation or the timely institution of the proceeding.
This was an appeal from a judgment for plaintiff in the Circuit Court of St. Charles County to the St. Louis Court of Appeals. There the judgment was affirmed, but the St. Louis Court of Appeals deeming its opinion to be in conflict with the opinion of the Kansas City Court of Appeals in Weaver v. Woodling, 272 S.W. 373, certified the cause to this court. After a careful consideration of this case and of the opinions rendered in both cases we are satisfied that the doctrine announced in the opinion rendered in Weaver v. Woodling, should no longer be followed. We approve the well reasoned opinion written by DAUES, P.J., and concurred in by BECKER and NIPPER, JJ., in the instant case, and, omitting the clause transferring the case to this court, we incorporate it, with slight textual changes and without using quotation marks, as and for the expression of our own views and rulings herein, as follows:
This appeal involves a determination of the question as to whether a suit suffers a discontinuance if plaintiff fails to cause an alias writ of summons to be issued at the return term and successive pluries writs at every succeeding term until the defendants can be found and served; whether, if no writ was issued between the date of the first non est and the date of the issuance of the last writ, such will affect the validity of the judgment though a number of terms have intervened. This question has disturbed the Bar since the decision in the case of Weaver v. Woodling, 272 S.W. 373, by the Kansas City Court of Appeals, wherein it was held that under such circumstances the cause suffers a discontinuance.
The facts in the instant case are these:
On March 20, 1915, plaintiff obtained a judgment in the Circuit Court of St. Charles County against defendants in the sum of $1500, with interest and costs. This judgment remained unsatisfied, and on March 14, 1925, plaintiff filed a petition to revive the judgment, which was an application for the suing out of a writ of scire facias to revive the judgment, and on that day a writ of scire facias was issued directed to the Sheriff of the City of St. Louis, returnable to the next term of the Circuit Court of St. Charles County, being on the second Monday of May, 1925. The writ was in usual form, to show cause why the judgment should not be revived and the lien continued according to law. To this writ the St. Louis sheriff made a not-found return. On June 25, 1925, and during the same May term of the St. Charles County Circuit Court, that court made an order for an alias summons, again directed to the Sheriff of the City of St. Louis. This was returnable on the first day of the next term, to-wit at the October term. The alias summons was issued and nothing further appears in the record as to this alias summons, but the record does show that during the same term at which this summons was issued, to-wit, the May term, 1925, the Circuit Court continued the case to the next term, to-wit the October term, 1925. Thereafter, at the October term, 1925, the St. Charles Circuit Court ordered another alias summons directed to the same sheriff and returnable to the May term, 1926, of said court. Under the last-mentioned order the clerk of the court on January 27, 1926, being the October term, 1925, issued another or alias writ of scire facias directed to the Sheriff of the City of St. Louis, returnable to the May term, 1926, of said court. The regular February term, 1926, intervened between the October term, 1925, and the May term, 1926, to which the last-mentioned writ of scire facias was made returnable. There being three terms of the circuit court of said county, beginning, respectively, on the first Monday in February, the second Monday in May and the fourth Monday in October, therefore the last-mentioned scire facias having been issued on January 27, 1926, was issued within a few days and less than fifteen days before the beginning of the February term, 1926, and hence was made returnable to the May term, 1926. During said February term, 1926, the court duly entered an order continuing same to the next regular May term, 1926. The scire facias writ issued on January 27, 1926, was served on the defendants on April 27, 1926, as duly appears from the sheriff's return. Thereafter, in vacation of said court, during the May term, 1926, before the adjournment of the term, the defendants entered their special appearance and moved the court to dismiss the cause upon the ground that the court had no jurisdiction to try same. This motion was not determined at the May term, 1926, but during that term the court again continued the cause to the October Term, 1926. At the October term, 1926, the court overruled appellants' motion to dismiss. The cause was taken up and plaintiff introduced evidence to support her right to have the judgment revived. The defendants did not appear, and the court ordered a revival of the judgment and the lien thereof, and ordered execution.
When this judgment was entered, it was discovered that the return of the Sheriff of the City of St. Louis to the writ of scire facias of January 27, 1926, had not been filed, and during said term the return of the sheriff was duly filed, showing service on the said writ on defendants on April 27, 1926, and it is because of the fact that the judgment of revival of December 6, 1926, was entered prior to the filing of said sheriff's return that the court set aside the judgment and on the same day entered another judgment of revival. Again the defendants moved to set aside the judgment and filed a motion in arrest of judgment. Both of these motions were overruled at the next term of said court, whereupon the defendants appealed to this court.
Riveted to the exact point, it is contended by appellants that since the record disclosed that on March 14, 1925, a petition for writ of scire facias to revive the judgment was filed in the clerk's office, and that the writ was issued and made returnable to the May term, 1925, of the Circuit Court, and that a non est return was made thereon, and that the May term, 1925, was suffered to elapse, and that not until the October term, 1925, was the alias writ issued returnable to the May term, 1926, that therefore the writ was improperly issued, not being issued at the term of court to which the original writ was made returnable.
Appellants rely upon the cases of Weaver v. Woodling, supra, and Mason v. Railroad, 226 Mo. 212, 125 S.W. 1128. Counsel for respondent insist, first, that the case of Weaver v. Woodling, supra, is distinguishable, and, secondly, that if not distinguishable then same should not be followed by this court. We are of the opinion that the case is not distinguishable, but we are constrained to differ with the Kansas City Court of Appeals as to the correctness of the rule there reached. We find ourselves of a directly opposite view from that expressed in that case.
The Weaver case adopts the theory that processes must be regularly continued from term to term, and if a hiatus intervenes between the successive processes such will operate as a discontinuance. The Kansas City Court of Appeals in that case predicated its reasoning upon the rule of the common law which at an early period fitted its practice to the position that no suitor had any individual right to invoke the jurisdiction of the courts for the enforcement of a private right or redress for a private wrong. It was the doctrine that the right emanated from the Crown, and in order to obtain court relief a writ had to be sued out to obtain such right in the first instance. Such writs were then issued by the clerks in chancery. It was not only a notice for the defendant to appear, but operated as the Crown's mandate for the court to take jurisdiction of the case. The foundation, then, of the court's jurisdiction was this writ. So, then, it was the common-law theory that such process would have to be continued from term to term so that the court might retain jurisdiction of the case from time to time. Under such theory the plaintiff suffered a discontinuance if he failed to continue the process from term to term. It appears, however, that such discontinuance was usually avoided by a fictitious entry of continuance until the process was served. Now do we, under our practice and modern view of the law and our Statute of Jeofails, find ourselves still planted upon this ancient rule, or should we not hold that this old rule has no place in our reformed procedure which has departed from and modernized the old law of procedure and made the rule of reason fit our present practice under our statutes? We can see no foundation in reason or in our present law of procedure for the theory that processes must be continued from term to term or sued out each term in order to keep the cause alive. Our experience teaches us that such has not been the understanding of the Bar generally.
Section 1550, Revised Statutes 1919, provides, inter alia, that no judgment shall be reversed or affected by reason of an imperfection or defect (fifth subdivision) "for any mispleading, miscontinuance or discontinuance, insufficient pleading, jeofail or misjoining issue." We think a proper construction of that statute forces an acceptance of the view that it was there intended to avoid a suffering of a discontinuance under circumstances such as are referred to in the Weaver case, supra, and as we have before us in the case at bar.
The case of Mason v. Railroad, supra, involved the right of plaintiff to bring a new suit upon the same cause of action within one year after the demurrer was sustained to the evidence and the taking of an involuntary nonsuit.
Wetmore v. Crouch, 188 Mo. 647, 87 S.W. 954, decided, as we read it, that the statute with reference to bringing a suit after a nonsuit applied as well to voluntary as to involuntary nonsuits.
In Pitkin v. Flagg, 198 Mo. 646, 97 S.W. 162, the trial court warned plaintiff's counsel at a previous term of the failure to diligently prosecute the suit, and at such subsequent term dismissed the suit for failure to diligently prosecute. The plaintiff there had filed a lis pendens as to certain real estate. He was keeping the suit on the docket without making any effort to obtain service, either personal or constructive. The Supreme Court, after reviewing the situation, said that in that sort of a case certainly the litigants were entitled to a speedy trial and that the trial court was justified in dismissing the action because the plaintiff "has shown no diligence in his prosecution." We have in mind that Section 1275, Revised Statutes 1919, provides that where there is failure to renew process at each term as to any defendant, the plaintiff may dismiss as to such defendant, and subsequently bring in such defendant as a new party and have him summoned. That still does not impel a discontinuance of the case for failure to keep process in issuance at each term.
Now in Parsons v. Hill, 15 App. D.C. 532, (District of Columbia), it is pointedly ruled that where there is a non est return upon an original summons, it is not necessary for the plaintiff in order to keep the suit alive to sue out successive writs of summons at interval terms or to enter continuance until the defendant can be served. The opinion is very instructive. It refers to the common-law practice, but accepts the view that there is now a very radical departure from the ancient rule, and that this was effected by the act of Congress creating the Supreme Court of the District of Columbia, giving it power to establish rules or practice. And in adopting such rule of civil procedure, the opinion declares that such modern view cannot be deemed to be antagonistic to common right when common sentiment everywhere has demanded a change as against such old rule. Our practice is very similar to the practice there, and the reasoning set forth in the Parsons case, supra, is forceful and we follow it. What purpose is served by continual and uninterrupted writs of summons when it is known they cannot be actually served? Plaintiff, for instance, knows that the defendant is away from the jurisdiction or cannot be served for other sufficient reasons. Why should plaintiff be burdened with an utterly useless endeavor and make unnecessary costs attach to the litigation when it could not possibly benefit anyone? The docket would be constantly cluttered, as that court said, with entries of conspicuous inutility. The opinion in the Parsons case is so exhaustive and complete that we are convinced after reading it that under our practice in this State, and especially under the Statute of Jeofails, we cannot hold that a discontinuance was suffered in this case.
The Parsons case was again followed in Bliss v. Duncan, 44 App. D.C. 93. While it is true, those cases are bottomed upon the rule of the Supreme Court of the District of Columbia, we think exactly the same situation arises under our Code of Civil Procedure. Nothing appears in our code, we think, which warrants holding otherwise.
We shall not discuss the argument made with reference to the distinction of the case at bar from Weaver v. Woodling, supra, because we confess we see no distinction in so far as the point exactly decided is concerned.
We have these further observations to make, however:
It should be borne in mind that a discontinuance, generally speaking, is a failure to continue the case regularly from day to day and from term to term from the commencement of the suit until final judgment. Discontinuance results where there is a necessity of continuance to be promptly entered. The word "continuance" is defined by the lexicographers as an admission of postponement of action pending in court to a subsequent day or another term. It is not absolutely necessary to enter a continuance in every particular case; a general continuance of all cases undisposed of at the end of the term will prevent a discontinuance. It is only necessary that no disposition has been made of the case, and where the cases undisposed of at the end of the term are continued by a general order, there is no discontinuance in any sense of the word. A voluntary discontinuance is a voluntary action on the part of plaintiff whereby his case goes out of court without a decision on the merits. Now, there can be no discontinuance, or strictly speaking, involuntary discontinuance, where all cases on the docket are continued at the end of the term as being undisposed of. It may be that a litigant may not have a special order of continuance appearing of record of his particular case, and if he had not sued out an alias summons his case would still stand continued if all the cases are continued by the court to the next term.
18 Corpus Juris, at page 1204, section 137, recites that under the common law there would be a discontinuance where the plaintiff neglected to obtain the continuance, yet it is generally held under the codes and practice acts in the states that a failure to make an entry in the cause, except regular continuances made at the end of the term, will not work a discontinuance of the suit. [See also; Johnson v. Ditty, 7 Yerg. (Tenn.) 85; Gillespie v. Redmond, 13 Tex. 9; Ex parte Driver, 51 Ala. 41; Gilbert v. Hardwick, 11 Ga. 599.]
It appears, too, that under the common law of England and the act of Parliament as it stood at the time it adopted same, the practice relating to discontinuance had become obsolete and attention was paid to same only when defendants came in and pleaded the statute of limitation. In this event, it seems the court directed the clerk to enter fictitious entries of continuances or process from term to term, and thus cured the default. Except when the statute of limitation was involved, these implied or involuntary discontinuances arising from the failure to continue process were wholly disregarded by the courts of England. It may be that failure to keep process alive is evidence of a failure to prosecute diligently under certain circumstances, but such failure does not in itself necessarily work a discontinuance in all cases.
Respondent's motion to dismiss the appeal has been considered and is by us overruled.
We are constrained, therefore, to sustain the lower court and to rule that the judgment must be affirmed. All concur.