Alexander Const. Co. v. Weaver, 49604

• Decision Date: 04 May 1979
• Docket Number: No. 49604,49604
• Citation: 594 P.2d 248,3 Kan.App.2d 298
• Parties: ALEXANDER CONSTRUCTION COMPANY, Appellant, v. H. Sanford WEAVER, Appellee.
• Court: Kansas Court of Appeals

Page 248

594 P.2d 248

3 Kan.App.2d 298

ALEXANDER CONSTRUCTION COMPANY, Appellant, v. H. Sanford WEAVER, Appellee.

No. 49604.

Court of Appeals of Kansas.

May 4, 1979.

Syllabus by the Court

1. Kansas statutes of limitations, K.S.A. 60-511(5) and 60-516, govern the filing of foreign judgments in Kansas, whether they be filed by authority of the common law or under K.S.A. 60-3001 Et seq., the Uniform Enforcement of Foreign Judgments Act.

2. Foreign judgments properly filed in Kansas under the Uniform Enforcement of Foreign Judgments Act, K.S.A. 60-3001 Et seq., are treated the same as Kansas judgments and are considered Kansas judgments as of the date of the Kansas filing.

3. K.S.A. 60-2403 and 60-2404 provide time limitations for the enforcement of domestic judgments.

4. Enforcement of foreign judgments is subject to the limitations provided in K.S.A. 60-2403 and 60-2404.

Robert W. Meglemre of Bressel & Meglemre, Kansas City, Mo. and L. Michael Schwartz of Barnett & Lerner, Chartered, Kansas City, for appellant.

J. O. Biggs of Wagner, Leek & Mullins, and M. C. Slough, Shawnee Mission, for appellee.

Before FOTH, C. J., and PARKS and SWINEHART, JJ.

SWINEHART, Judge:

This is an appeal by Alexander Construction Company, hereinafter referred to as plaintiff, from an order of the court rejecting its request to examine H. Sanford Weaver, hereinafter referred to as defendant, on a foreign judgment filed in Kansas under the provisions of K.S.A. 60-3001 Et seq., and releasing a judgment lien on the records of Johnson County.

The facts are not in dispute and are as follows. Plaintiff obtained a money judgment against the defendant in the District Court of El Paso County, Colorado, on January 26, 1968. Such judgment is valid and enforceable in Colorado for a period of twenty years. On April 25, 1977, pursuant to provisions of the Kansas Uniform Enforcement of Foreign Judgments Act at K.S.A. 60-3001 Et seq., plaintiff filed an affidavit for registration of the Colorado judgment in the District Court of Johnson County. This was the plaintiff's first effort to enforce the Colorado judgment in Kansas. On August 24, 1977, the plaintiff filed an application for examination of the judgment debtor. As a result, the defendant filed a motion for an order rejecting examination and for release of the judgment lien on the ground that the filing of the foreign judgment was barred under the Kansas statute of limitations.

Plaintiff asserted that the judgment entered in Colorado on January 26, 1968, could be filed in Kansas and was entitled to full faith and credit as a foreign judgment for a period of twenty years from the date of its entry in Colorado. Defendant argued, however, that the Colorado judgment, even though valid in Colorado for twenty years, was of no effect in Kansas since it was entered more than seven years prior to April 25, 1977, the filing date in Kansas, during which time the plaintiff had made no effort to enforce said judgment in Kansas. Defendant relied on the argument that foreign judgments are to be governed by the laws of the forum state (Kansas), and therefore under the provisions of K.S.A. 60-2403 and 60-2404, this was a dormant judgment that could not be enforced in Kansas.

The question raised in this appeal is one of first impression regarding the provisions of the Uniform Enforcement of Foreign Judgments Act (K.S.A. 60-3001 Et seq., which became effective July 1, 1970), insofar as they relate to the statute of limitations for the filing of such foreign judgments for enforcement in Kansas. K.S.A. 60-3001 Et seq., sets forth the general procedures for the filing and enforcement of foreign judgments in Kansas, and K.S.A. 60-3002 specifically provides for the filing and treatment of foreign judgments.

"60-3002. A copy of any foreign judgment authenticated in accordance with the act of congress or the statutes of this state may be filed in the office of the clerk of any district court of this state. Such copy must be filed by an attorney licensed to practice law in the state of Kansas. The clerk of the district court shall treat the foreign judgment in the same manner as a judgment of the district court of this state. A judgment so filed has the same effect and is subject to the same procedures, defenses and proceedings as a judgment of a district court of this state and may be enforced or satisfied in like manner."

It is conceded that the plaintiff has fully complied with the procedures for filing. The question on appeal is: Was this Colorado judgment subject to the defense that enforcement thereof was barred by the statute of limitations of Kansas?

It is plaintiff's contention that its Colorado judgment, obtained January 26, 1968, which under Colorado law would be a valid enforceable judgment for a period of twenty years, is entitled to registration in Kansas as a foreign judgment under the provisions of K.S.A. 60-3001 Et seq., for a period of twenty years, and that the filing in Kansas on April 25, 1977, meets the requirements of the law. Defendant's contention is that enforcement of this Colorado judgment under the Uniform Enforcement of Foreign Judgments Act must be commenced and acted upon by enforcement proceedings within the period of limitations as provided by K.S.A. 60-2403 and 60-2404.

"60-2403. If execution, including any garnishment proceeding and any proceeding in aid of execution, shall not be sued out within five (5) years from the date of any judgment, including judgments in favor of the state or any municipality in the state, that has been or may hereafter be rendered, in any court of record in this state, or within five (5) years from the date of any order reviving such judgment, or if five (5) years have intervened between the date of the last execution issued on such judgment and the time of suing out another writ of execution thereon, such judgment, including court costs and fees therein shall become dormant, and shall cease to operate as a lien on the estate of the judgment debtor. When a judgment shall become dormant as herein provided, and shall so remain for a period of two (2) years, it shall be the duty of the clerk of the court to release said judgment of record, and the clerk shall make an entry on the appearance and judgment dockets wherein the judgment appears of record, reciting, 'this...