Alexander v. Munroe

• Decision Date: 17 August 1909
• Parties: ALEXANDER v. MUNROE et al.
• Court: Oregon Supreme Court

103 P. 514

54 Or. 500

ALEXANDER v. MUNROE et al.

Supreme Court of Oregon

August 17, 1909

On rehearing. Modified and affirmed.

For former opinion, see 101 P. 903.

EAKIN, J.

Counsel for defendant Edith Munroe urges that the decree of the lower court is erroneous to the extent that it includes a personal judgment against her for the sum of $2,357.45 due Huston & Snow. As the whole relief sought by Huston & Snow grows out of the decree in the creditors' suit of date July 19, 1894, and as the decree in that suit was evidently not intended to operate as a personal judgment against Edith Munroe, but only a determination of the amount due, for the purpose of settling the extent of the liability of the property involved therein, it does not justify a personal judgment in this suit against Edith Munroe in favor of Huston & Snow, other than to fix the amount for which the property is liable, and it should not operate as a deficiency judgment.

Counsel again urges that, the 10 years' limitation having elapsed since entry of the decree of 1891, the decree is conclusively presumed to be paid, and therefore cannot be the basis for any relief. The effect of that statute (section 241, B. & C Comp.) is that, after the lapse of 10 years without an execution being issued, the judgment shall be conclusively presumed to be paid. In Bowman v. Holman, 99 P. 424 this court held that the effect thereof takes away the right as well as the remedy that theretofore existed; but in this case a creditors' suit was commenced within the life of the judgment, which, so far as the property involved is concerned, is a suit on the former judgment, and, being within the necessity recognized as sufficient to justify a suit on a judgment in Pitzer v. Russel, 4 Or. 124 necessarily renews it, at least as against this particular property.

This suit was brought to reach assets not available by an execution at law. It is in the nature of an equitable execution, or equitable relief which is granted on the ground that there is no remedy at law. It is taking out of the way a hindrance which prevents the execution at law, in effect a substitute for an execution. In re Shephard, 43 Ch.Div. 131; In re Craig & Leslie, 18 Ont.Pr. 270; Hatch v. Van Dervoort, 54 N.J.Eq. 511 34 A. 938; Hunt v. Wolfe, 2 Daly (N.Y.) 298, 303; High on Receivers, § 2. These authorities refer particularly to the proceeding by a receiver as constituting an equitable...