Bick v. Dixon

REYNOLDS, P. J.

(after stating the facts).— 'While counsel speak of this as “an action,” a proceeding *71 by scire facias is not, strictly speaking, an action, bnt a mere continuation of and ancillary to tbe original action. [Sutton v. Cole, 155 Mo. 206 , 55 S. W. 1052 ; Bick v. Tanzey, 181 Mo. 515 , 80 S. W. 902 .]

Judge Gantt, speaking for our Supreme Court, in Rodney v. Gibbs, 184 Mo. 1, 1 . c. 11, 82 S. W. 187 , and discussing tbe effect of an appeal, says: “Until reversed or set aside, that decree was valid and binding, and altbougb an appeal was then pending in this court, as it was taken without bond being given, it did not even suspend tbe judgment nor prevent tbe enforcement of tbe decree by execution.” Further along and referring to tbe decision of Judge Thayer, in Ransom v. City of Pierre, 41 C. C. A. 585 , in which Judge Thayer reached tbe conclusion that tbe weight of authority as well as reason is, that when a case is removed to an appellate court by a writ of error or an appeal, and it is not to be tried there de novo, but is to be determined by an examination of the record and tbe judgment either reversed or affirmed or modified, that such an appeal or writ of error does not vacate tbe judgment below nor prevent it from being pleaded or given in evidence as an estoppel upon issues that were tried and determined, unless some local statute provides that it shall not be so used pending tbe appeal. It is said by Judge Gantt (1. c. 14): “Tbe question is not without its difficulties, from whatever standpoint we view it, but we are of opinion that under our laws, tbe judgment is a determination of tbe rights of the parties thereto until reversed or modified, and, indeed tbe great weight of authority is, that a supersedeas has no other force or effect than to prevent the enforcement of the judgment and does not destroy its operation as a former adjudication. In this case,” says Judge Gantt, “we have no superse-deas, but a mere naked appeal, and hence under either doctrine the judgment . . . was an estoppel to reopening the issues found against defendants in this case who were plaintiffs in that, and the pendency of the *72 appeal did not destroy the effect of that decree as an estoppel, and it follows the circuit court erred against the plaintiff in not according it that effect.” It is claimed by the learned counsel for the appellant, that all that is said in this case of Rodney v. Gibbs, upon the effect of an appeal with supersedeas bond to prevent the judgment appealed from operating as res judicata is obiter and was not in decision in that case. While in the case . before us there is not a question of res judicata, strictly speaking, the application of the decision in Rodney v. Gibbs to the case at bar is this: It determines that notwithstanding a judgment has been appealed from, it is in full force and efféct pending the appeal, even with a supersedeas bond, the only effect of the supersedeas bond being to stay its enforcement; and further applying it to the case before us, its effect is to hold that the 'judgment on which this scire facias was sued out having been vacated by a judgment rendered in a direct suit upon it, the first judgment is of no force and effect, and although the latter judgment has been appealed from, no scire facias could issue on the first or original judgment, pending the appeal. As we understand the facts in this case, the scire facias here under consideration was sued out after the rendition of the judgment annulling the original judgment. Therefore the point urged by counsel, that a suit on the judgment and a scire facias to revive the judgment can be maintained simultaneously, is of no importance in this case, because if there was no valid, subsisting, enforceable judgment in existence, neither a scire facias nor an action would lie. Either proceeding can stand, only when there is an enforceable judgment to act upon. If it is meant by contention of counsel, that the only point in decision in Rodney v. Gibbs is that a judgment appealed from without a supersedeas bond is so much a judgment and enforceable as to sustain a plea of res judicata, but that what is said about not enforcing or pleading a judgment when a supersedeas bond has been given, is obiter, then *73 we are without- anything in the case at bar to show which of these was the fact here. The stipulation upon which the case was tried and which is the only matter in the record before us showing what was before the trial court, is silent on this point. It was for the plaintiff to have cleared that up; for if no supersedeas issued, the case confessedly was within the Rodney decision; to bring it within what appellant calls the obiter and so without the real decision, appellant should have shown the execution of a supersedeas bond. If we are to indulge in presumptions, however, as to this, they must always be, first, in favor of the regularity of the proceeding of the trial court, and, second, that the party has put in all his probative facts. We have a right to presume that if a supersedeas bond had been given, the fact of its being given was such a material fact for appellant, that he would not have omitted it from the stipulation upon which the case was tried. But in the light of the decision in Rodney v. Gibbs, we hold that it was unimportant whether a supersedeas bond had been given or not. As we understand that decision, it holds that the appeal itself, whether with or without a super-sedeas bond, did not operate to reinstate the judgment vacated by the judgment appealed from. In the case at bar, in suing out the scire facias, appellant attempted to entirely ignore the fact that the judgment of the court on which he sued out the scire facias had before then been set aside and vacated. It is admitted that that judgment had been annulled when the writ of scire fa-cias was sued out and issued. True, that judgment, vacating the original one, was appealed from. That appeal was pending and undetermined, but certainly the appeal did not reinstate the judgment vacated by the judgment appealed from. That being so, there was nothing for this writ to act upon. On the authority of the Rodney Case, the judgment in the case before us is affirmed.

All concur.