— Hon. . E. M. Hughes, Judge. Judge Bond concurring, Judge Bland not sitting. A judgment' rendered in a proceeding by scire facias, is a new judgment. Walsh v. Bosse, 16 Mo. App. 231. This new judgment can not be rendered against the defendants, unless their liability appears on the face of the pleadings. Plaintiff attempts to make defendants liable in this action under section 6016, Revised Statutes 1889.
Key passage — most relied on by later courts
““Here the term ‘legal representatives’ has a twofold meaning. In proceedings affecting land it means the heir or devisee. As to personalty the administrator or executor is meant. Therefore if the plaintiff seeks, by a revival proceeding, to affect land only, there can be no good reason for mailing the executor or administrator a party. So if the obtaining of a new judgment is for the purpose of allowance only, as provided by section 6024 of the statute (now 2137'), there can be no necessity for making the heir or devisee a party.””
“* ‘ The position assumed by the defendant is that to entitle the plaintiff to maintain the action against them, it devolved upon him to show that their father died seized of real estate or that they had received or inherited from him land which ought to be subjected to the payment of plaintiff’s judgment. In answer to this it is sufficient to say that Gibson (the ancestor) may have made a fraudulent disposition of land which might make it important for the plaintiff to keep' the lien of his judgment in force.””
Good law ✅— No negative treatment on recordhow we know
Aeeirmed · Decided 1897-05-11
How this case has been cited
Cited by 4 later decisions — most recently July 1966
4 state decisions
Later decisions citing this case, by decade. The current decade is in progress, and our corpus holds fewer opinions from the most recent years, so the latest bars are undercounted — not a real decline.
¶1On the fifteenth day of February, 1893, the plaintiff obtained a judgment against Hugh B. Gibson in the circuit court of Montgomery county. Gibson died intestate in December, 1894. The present action is to revive the judgment. The defendants are the children and only heirs at law of Gibson. They appeared to the action and filed an answer, in which they admitted the death of Gibson; that they were his *234children and heirs at law, and that the judgment was rendered as alleged in the petition. They averred that the action ought not to be maintained against them for the reason that their father died seized of no real estate, and that they had not received from him or his estate any kind or description of property. Upon the admissions in the answer the circuit court entered á judgment in favor of the plaintiff, to which the defendants excepted.
¶2Rla|aiDS°he?ra°to against intestate, The position assumed by the defendants is that to entitle the plaintiff to maintain the action against them, it devolved upon him to show that their father died seized of real estate or that they had received or inherited from him land which ought to be subjected to the payment of plaintiff’s judgment. In answer to this it is sufficient to say that Gibson may have made a fraudulent disposition of land which might make it important for the plaintiff to keep the lien of his judgment in force.
¶3Pagw?nst:heirs.mty Again, it is urged that the judgment of revival is in effect a new judgment for the payment of which the defendants are made personally liable. Counsel is in error as to the latter proposition. The statute provides that a judgment may be revived against the heir or devisee of a deceased defendant. It also provides in effect for the issuance of an execution against such heir or devisee, provided the execution concerns real estate received or inherited by him from the ancestor, but not if the levy of the execution concerns personalty. Sec. 6024, R. S. 1889. This shows conclusively that in'such a case the judgment of revivor imposes no personal liability on the heir or devisee.
¶4*235parties. Dwa?vAofparties:*234Neither is the" point well taken that the administrator of Gibson was a necessary party. Section 6024 *235of the statute provides that the service of the scire facias may be had on “the legal representatives” of a deceased defendant. Here the term “legal representatives” has a twofold meaning. In proceedings affecting land it means the heir or devisee. As to personalty the administrator or executor is meant. Therefore if the plaintiff seeks, by the revival proceedings, to affect land only, there can be no good reason for making the executor or administrator a party. So if the obtaining of a new judgment is for the purpose of allowance only as provided by section 6024 of the statute, there would be no necessity for making the heir or devisee a party. As to this assignment it may also be suggested that the defendants, by filing an answer and going to trial, waived any objection as to a defect of parties defendant.
¶5Our conclusion is that the judgment ought to be affirmed. It is so ordered.
