Kelly v. City of Cape Girardeau , 230 Mo. App. 137 ( 1936 )

ON MOTION FOR REHEARING. In our principal opinion herein we have characterized the suit brought by plaintiff as being one in the nature of a contempt proceeding designed to seek the punishment of the individual defendants to the suit upon their further noncompliance with the terms of the original decree adjudicating a nuisance to exist and ordering that it be abated; and we have further held that plaintiff's petition, so construed and considered, was demurrable in that the mandatory provisions of such original decree were so vague and indefinite in respect to what was expected to be done towards abating the nuisance as not to serve as the basis for the bringing of a charge of contempt growing out of any failure on the part of the defendants to have complied with such decree.

Now on motion for rehearing plaintiff reaffirms his position taken on submission of the case that it was in nowise his intention to have the officers of the defendant city punished for contempt; and again he earnestly and vigorously insists that his sole purpose in instituting the present suit founded upon the fact of defendants' noncompliance with the original decree was to avoid any bar of limitation of time arising upon the expiration of a period of ten years from and after the date of the rendition of such decree.

As the basis for the bringing of the present suit, and as evidencing the necessity for it, plaintiff relies upon section 886, Revised Statutes 1929 (Mo. St. Ann., sec. 886, p. 1168), which provides that every judgment, order, or decree of any court of record shall be presumed to be paid and satisfied after the expiration of ten years from the date of the original rendition thereof; or if the same has been revived upon personal service duly had upon the defendant or defendants, then after ten years from and after such revival; or in case a payment has been made on such judgment, order, or decree, then after the expiration of ten years from the last payment so made; and that after the expiration of ten years from the date of the original rendition or revival upon personal service, or from the date of the last payment, such judgment shall be conclusively presumed to be paid, and no execution, order, or process shall issue thereon, nor shall any suit be brought, had, or maintained thereon for any purpose whatever.

This statute, of course, is obviously to be read, just as the courts do read it, along with and as supplementing sections 1106-1113, Revised Statutes 1929 (Mo. St. Ann., secs. 1106-1113, pp. 1401-1404), which have to do generally with the right of a judgment creditor to sue out an execution upon his judgment, or to revive the judgment and lien by scire facias, at any time within ten years after the rendition of the judgment. We understand, too, that not only does section 886 serve under the particular circumstances noted therein to extend the time within which an execution may be issued upon a judgment (State ex rel. v. Buford (Mo. App.), 18 S.W.2d 526), but also that it permits the extension of the vitality of a judgment by the bringing of an action thereon short of the accrual of the bar of limitation, and this despite the method of revival by scire facias expressly provided by the other sections which have been heretofore referred to. [Excelsior Steel Furnace Co. v. Smith (Mo. App.), 17 S.W.2d 378.]

So what plaintiff has in mind, in brief, is that his present suit is of the character of suit contemplated or at least permitted by section 886 for the revival or extension of a judgment or decree unsatisfied and about to expire by limitation of time, and that if the present suit had not been instituted by him, as it was, short of the expiration of ten years from and after the date of the rendition of the original decree, then that decree, by virtue of our several dormancy statutes, would not only have become dormant at the end of such ten-year period, but in fact, under the provisions of section 886, there would have arisen a conclusive presumption that the terms of the decree had been complied with, and no further or subsequent step would have been allowed on plaintiff's part by suit or otherwise looking to the matter of securing defendants' compliance with it.

The trouble with plaintiff's position is, however, that he reaches his conclusions regarding the necessity for and the propriety of his present suit only by assuming that the several dormancy statutes referred to are applicable to and control the case, when, as a matter of fact, or at least as we understand them, they are wholly inapplicable to it because of the inherent nature and character of the original decree.

It is a generally accepted theory of law that statutes relating to the dormancy of judgments or decrees and their revival byscire facias or otherwise have reference to money judgments capable of enforcement by execution, and that such statutes are not generally to be regarded as imposing a limitation of time upon the enforcement of judgments or decrees which are not for the payment of money or which are not enforceable by execution. [34 C.J. 655, 656, 658, 661.]

We think that our local dormancy statutes are clearly in accord with the theory underlying the enactment of that class of statutes generally, at least in so far as they are designed to have no application to judgments or decrees of the character of the original decree entered in plaintiff's favor, which, instead of requiring the payment of any money, was purely one adjudging a nuisance to exist and ordering that it be abated. We say this for the reason that our revival statutes by their very terms seem primarily to contemplate judgments or decrees giving rise to a lien against the real estate of the judgment debtor; and, of course, for a judgment or a decree to create a lien, it must be for a definite and certain sum of money, capable of collection by execution levied upon the property of the judgment debtor. [Hagemann v. Pinska, 225 Mo. App. 521, 37 S.W.2d 463; 34 C.J. 570-572.]

In the same manner, section 886, which is the very statute upon which plaintiff founds his pretended cause of action, is a statute obviously enacted to declare a presumption, not of performance, but of payment of a judgment or decree after the expiration of ten years from the date of its original rendition, unless such presumption of payment is repelled by proof either of a revival duly had, or else of payment made upon the judgment. The very language of section 886, and the sole purpose to be served by it as declared upon its face, refute any idea that it was ever intended to apply to any judgment or decree except one which might be satisfied by payment, a requirement which logically, in accordance with the spirit of similar statutes quite generally enacted upon the basis of the common-law rule, means payment in money in satisfaction of a definite pecuniary liability adjudged by the court to exist between the parties to the judgment. [34 C.J. 692-693.]

It is of course entirely conceivable that our local statutes, though indeed ordinarily applicable only to judgments or decrees of a character to be capable of enforcement by execution as we have heretofore pointed out, may in some instances include and apply to judgments or decrees not so capable of enforcement, as in the case of a judgment against a judgment debtor whose property for one reason or another is exempt from levy and sale under execution; but so far as concerns section 886 at least, its application is limited by its own terms to judgments which, regardless of whether executions may be issued upon them, may in all events be satisfied by payment, and so it may not be held to extend to a judgment which requires the performance of any other act than the payment of money, the method for enforcing the performance of such type of judgments being specifically covered by section 1102, Revised Statutes 1929 (Mo. St. Ann., sec. 1102, p. 1398).

So we conclude that for want of a basis in law the present suit could not in any event have served the purpose which plaintiff claims for it and which he would have us ascribe to it, and he makes no contention that it was designed to accomplish or could have accomplished any other result. We are therefore prompted to repeat the observation made in our principal opinion, which was that if the suit is to serve any legitimate purpose whatsoever, it is to be regarded as one in the nature of a proceeding in contempt; and we must adhere to our former view that the original decree affords no basis for the maintenance of such a proceeding in view of the vagueness and indefiniteness of its provisions respecting what the defendants were to be called upon to do towards abating the nuisance found to exist in front of plaintiff's property.

It follows that the motion of plaintiff-appellant for a rehearing should be overruled; and the Commissioner so recommends.