V.A.M.S. 511.370

511.370. Scire facias to revive, may issue, when

The plaintiff or his legal representative may, at any time within ten years, sue out a scire facias to revive a judgment and lien; but after the expiration of ten years from the rendition of the judgment, no scire facias shall issue.

 

Only pertinent issues in scire facias proceeding to revive judgment are whether judgment creditor initiated proceeding within prescribed time of ten years, whether service, either personal or by publication, was obtained on judgment debtor, whether judgment existed, and whether judgment was satisfied; upon show cause order, judgment debtor may challenge scire facias proceeding by raising any of the defenses. Elliott v. Cockrell (App. E.D. 1997) 943 S.W.2d 328. Judgment 870(1)

 

A scire facias proceeding, not being an action but a proceeding ancillary and supplementary to a judgment, is a “special proceeding” within § 506.160. State ex rel. Silverman v. Kirkwood (Sup. 1951) 239 S.W.2d 332, 361 Mo. 1194. Judgment 870(5)

 

Service by mail or publication.

506.160. 1. Service by mail or by publication shall be allowed in all cases affecting a fund, will, trust estate, specific property, or any interest therein, or any res or status within the jurisdiction of the court, or in any special proceedings in which notice by mail or by publication is authorized, including but not limited to actions to quiet title and actions to ascertain and determine title to real estate. If the defendant so served does not appear, judgment may be rendered affecting said property, res or status within the jurisdiction of the court as to said defendant, but such service shall not warrant a general judgment against such defendant.

2. A party desiring service by mail shall allege and state either in his verified petition or in a separate affidavit any one or more of the same specific grounds for substituted service as set forth in subsection 3, or shall state any other facts showing why personal service cannot be had on the defendant or defendants in this state. Such petition or affidavit shall be verified by oath of the party or of someone in his behalf, and shall state the address of the party to be served by mail. Upon the filing of such petition or affidavit with the judge or clerk, the clerk shall serve a copy of the summons and of the petition by registered mail, requesting a return receipt signed by addressee only, addressed to the defendant at the address furnished by plaintiff.

3. If the plaintiff or other person for plaintiff shall allege in his verified petition, or at the time of filing same, or at any time thereafter, shall file an affidavit stating that part or all of the defendants are nonresidents of the state, or is a corporation of another state, kingdom or country, and cannot be personally served in this state in the manner prescribed by law for personal service, or have absconded or absented themselves from their usual place of abode in this state, or that they have concealed themselves so that the ordinary process of law cannot be personally served upon them, and the affidavit or the verified petition shall state the present known address of the defendant, if known, or in lieu thereof state that said address of the defendant is unknown, the court or judge or clerk thereof shall issue an order of publication of notice to such defendant or defendants, notifying such defendant or defendants of the commencement of the action, and stating briefly the object and general nature thereof, and describing the property, if any, to be affected. The notice shall also contain the name of the court and the names of the parties to the suit, and shall state the name and address of the attorney for plaintiff, if any, otherwise the plaintiff's address, and shall state that unless said named defendant or defendants file an answer or other pleading or shall otherwise appear and defend against the petition within forty-five days after the date of the first publication, to be stated in the published notice, provided, the court or judge thereof may extend the date within which any such defendant may plead or otherwise appear to a date certain beyond such forty-five day limit judgment by default will be rendered against them. Such notice shall be published at least once each week for four consecutive weeks in some newspaper of general circulation published in the county where suit is instituted, if there be such newspaper published there, which the plaintiff or his attorney of record may designate; if no such newspaper be published in such county, then in some such paper published in this state, which the plaintiff or his attorney of record may designate as most likely to give notice to the defendant or defendants to be notified. If the present known address of the defendant is given, the clerk shall within ten days after said order of publication mail a copy of the notice to each defendant whose address has been stated in the affidavit or verified petition. The clerk shall file a certificate certifying that copies of the notice have been mailed as required by this section, in all cases where the present known address has been given, and such certificates shall be conclusive and binding upon the parties.

4. When the names of one or more defendants are unknown to plaintiff, he may so state in his verified petition, or in a separate affidavit for order of publication, and the court or judge or clerk thereof shall issue an order of publication of notice to the unknown defendant or defendants in the same manner prescribed in subsection 3, and the notice of publication shall be published in like manner. It shall be sufficient to name or describe said unknown defendants as the heirs, grantees, or successors of the person to whom the property to be affected was last known to have been transferred.

5. Whenever publication of notice is ordered for service by mail or by publication in a newspaper, the court may also in its discretion, order that a summons be issued and delivered with a copy of the petition to the sheriff or other person especially appointed to serve the same, for personal service in the ordinary manner if the same can be had.

6. In any of the cases mentioned in subsection 1, the plaintiff may cause a copy of the petition, with a copy of the summons, to be delivered to each defendant residing or being without this state, and at any place within the United States or their territories summoning said defendant to appear and plead within thirty days after service upon said defendant; and if the defendant shall refuse to receive such copy of the petition and summons, the offer of the officer to deliver same to him or them, and such refusal, shall be as effectual service as though such copies were actually delivered to such defendant. Such service may be made by any officer authorized by law to serve process in civil actions within the state or territory where such service is made, or by his deputy, and shall be proved by the affidavit of such officer, or deputy, stating the time and manner of such service, made before the clerk or judge of the court of which affiant is an officer. Such clerk or judge shall certify to the official character of the affiant, and to his authority to serve process in civil actions within the state or territory where such service was made. When such certificate is made by a clerk or judge of a court of record, the same shall be attested by the seal of such court, and when the same is made by a judge of a court not of record, the official character of such judge shall also be certified by the proper officer of the state, under his official seal. Any return of service, made and certified as above provided, shall be prima facie evidence of the facts stated in such return. If the plaintiff, or his attorney of record, in any of the causes mentioned in subsection 1, shall allege in his verified petition, or at the time of filing same, or at any time thereafter shall make the affidavit required by subsection 3, and shall file in said cause proof of service of process on any defendant or defendants, in conformity with the provisions of this section, it shall not be necessary for such plaintiff or plaintiffs to obtain the order for service by mail or by publication provided for in this section or to procure the publication provided in this section.

74.09. Revival of Judgment

 

 

(a) When and by Whom. A judgment may be revived by order of the court that entered it pursuant to a motion for revival filed by a judgment creditor within ten years after entry of the judgment or the last prior revival of the judgment.

 

(b) Order to Show Cause. Upon the filing of a motion of revival of a judgment, an order shall issue to the judgment debtor to show cause on a day certain why such judgment should not be revived. The order to show cause shall be served pursuant to Rule 54 on the judgment debtor, his successors in interest, or his legal representatives.

 

(c) Judgment of Revival. If the judgment debtor, his successors in interest, or legal representatives fail to appear and show cause why the judgment should not be revived, the court shall enter an order reviving the judgment.

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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. Crockett v. Polen (App. W.D. 2006) 2006 WL 3068581, Unreported, rehearing and/or transfer denied, transferred to mo.s.ct., transferred to mo.s.ct. 225 S.W.3d 419, rehearing denied. Judgment Key Number Symbol 870(1)

 

Supreme Court rules allowing for service by publication in scire facias action superseded statutory requirement of personal service; legislature reenacted statute requiring personal service prior to instant action but did not annul, amend, or specifically refer to Supreme Court rules in effect at time of action allowing for proper revival through service by publication, provided defendant could not be found within the state for personal service. Lammers v. Lammers (App. W.D. 1994) 884 S.W.2d 389. Constitutional Law Key Number Symbol 2357; Scire Facias Key Number Symbol 9

 

Ex-wife complied with rules governing required notice in scire facias proceeding to revive ten-year-old judgment for alimony in gross and attorney fees and since ex-husband failed to appear, judgment was effectively revived where ex-wife filed affidavit stating that ex-husband's whereabouts were unknown to her, order of publication of notice was published in newspaper of general circulation in county where action was commenced for the required four consecutive weeks, and order was mailed to ex-husband at his last known address within ten days after order was issued. Lammers v. Lammers (App. W.D. 1994) 884 S.W.2d 389. Judgment Key Number Symbol 870(5)