State ex rel. Lawyers Title Insurance Corp. v. Elrod
State ex rel. Lawyers Title Insurance Corp. v. Elrod
Opinion of the Court
This is an appeal from a Writ of Prohibition issued by the Circuit Court of Madison County which prohibits the appellants from issuing a general execution and notice of levy pursuant to that execution. We affirm.
On April 21, 1978, Charter Finance Company, Inc., obtained a default judgment for $2,580.73 against Richard L. Myers in what was then the Magistrate Court of Madison County, Missouri. This judgment was never revived, nor was it transcribed to the circuit court.
Approximately three years and four months after the judgment was rendered, a general execution was signed on August 5, 1981, by appellant, the Honorable Don U. Elrod, Associate Circuit Judge of Madison County, by his Deputy Clerk, Hilda L. Tin-nin.
On August 31, 1981, respondent filed a Petition for Writ of Prohibition to enjoin appellant Asher from selling the real estate in question, pursuant to the execution issued by appellant Judge Elrod. On October 29, 1981, a Writ of Prohibition was issued enjoining appellants from selling the real estate at execution sale, thus rendering the lien placed on the real estate unenforceable. This appeal ensues.
It has long been established that prohibition is an appropriate remedy where an inferior court lacks jurisdiction to proceed. State ex rel. Blackwell v. Elrod, 604 S.W.2d 768, 769 (Mo.App. 1980). It is preventive in nature rather than corrective. State ex rel. McDonnell Douglas v. Gaertner, 601 S.W.2d 295, 296 (Mo.App. 1980).
The dispositive issue presented is whether § 517.810, RSMo 1969,
On January 2, 1979, § 517.810 was repealed, thus the applicable law to circuit court and associate circuit court judgments became § 513.020, RSMo 1978
Appellants argue § 513.020 is applicable to magistrate court judgments rendered prior to January 2, 1979, by reason of § 517.020.1(12).
Section 517.020.1(12) does not clearly mandate retrospective application of § 513.-020 to magistrate court judgments. As to the second exception, since the original judgment was not revived after the enactment of § 517.020.1(12) but before the expiration of the three-year period, the judgment is governed by § 517.810 as it then existed. Compare: Chenault v. Yates, 216 S.W. 817 (Mo.App. 1919). A contrary holding would effect substantive rights of the parties by creating new obligations and would therefore be unconstitutional. Buder, 515 S.W.2d at 410; Mo.Const.Art. I, § 13.
The judgment is affirmed.
. Although the general execution contains a typed date of August 5, 1981, as the date of its signing, the filing stamp shows that the document was not filed with the court until August 7, 1981.
. Hereinafter referred to as § 517.810.
. All statutory references are to RSMo 1978 except § 517.810, RSMo 1969.
. See Rule 74.43.
. Section 517.020.1(12) states:
1. Statutes and supreme court rules now or hereafter in effect with respect to the following subject matters in civil actions filed before or heard by circuit judges shall also apply to the maximum extent practicable with respect to the cases or classes of cases to which this chapter 517 is applicable, ex*398 cept where provided otherwise in this chapter or in other statutes or supreme court rules which become effective after January 1, 1978;
(12) The effect of judgment, judgment liens, revival of judgments, the setting aside of judgment, and the collection and satisfaction of judgment.
. Mo.Const.Art. I, § 13.
Reference
- Full Case Name
- STATE of Missouri, ex rel., LAWYERS TITLE INSURANCE CORPORATION v. The Honorable Don U. ELROD Associate Circuit Judge of Madison County, Division III, and Gary L. Asher, Sheriff of Madison County
- Cited By
- 8 cases
- Status
- Published