Ambler v. Whipple

• Decision Date: 31 October 1891
• Parties: AMBLER v. WHIPPLE et al.
• Court: Illinois Supreme Court

139 Ill. 311

28 N.E. 841

AMBLER

v.WHIPPLE et al.¹

Supreme Court of Illinois.

Oct. 31, 1891.

Appeal from appellate court, first district.

Action of debt, brought by Augustin I. Ambler against Rodney M. Whipple upon a decree rendered by the supreme court of the District of Columbia. The defendant pleaded the five-year statute of limitations. Plaintiff demurred to the plea. His demurrer was overruled, and he replied as follows: ‘And the plaintiff, as to the plea of the defendant Rodney M. Whipple by him firstly above pleaded, says that he, the plaintiff, by reason of anything in that plea alleged, ought not to be barred from having his aforesaid action, because he says that the cause of action in the said declaration mentioned accrued to the plaintiff on the 17th day of June, 1880, and on said last-mentioned day, to-wit, at the time said cause of action accrued, the defendant was a resident of the state of Illinois, and had departed from and was out of the state of Illinois, and thereafter remained out of the state of Illinois for a long period of time, to-wit, for a period of more than five weeks, and this suit was commenced within five years from the time of the return of said Whipple to the state of Illinois.’ The circuit court directed the jury to find a verdict for the defendant, and rendered judgment upon the verdict. The judgment was affirmed by the appellate court. Plaintiff appeals. Reversed.

A. J. Ambler, pro se, and J. R. Doolittle and Henry M. Booth, for appellant.

C. C. Bonny, L. M. Paine, Stiles & Lewis, and A. L. bradley, for appellees.

SHOPE, J.

The principal question for consideration in this case is whether an action on a judgment or decree rendered by a court of another state or by the supreme court of the District of Columbia is, within this state, barred in five years after the cause of action accrues thereon. This question was decided in the affirmative by this court in the case of Bemis v. Stanley, 93 Ill. 230. That was an action of debt upon a judgment rendered in the state of Ohio. The defendant pleaded that the cause of action did not accrue within five years next before the action was brought, to which the circuit court sustained a demurrer, so that the precise question here raised was there presented. The statute then in force was the same as that now in force. We held that the case fell under the fifteenth section of the limitation act of 1871-72, in force July 1, 1872, and reversed the judgment of the circuit court for error in sustaining the demurrer and holding that the plea presented a bar to the action. The propriety of that ruling is seriously questioned, and we are asked to reconsider and overrule the decision in that case. It is claimed that a judgment or decree of a court of record of a sister state or of a federal court is evidence of indebtedness in writing, and that, therefore, the limitation of actions thereon is 10 years, as provided in section 16 of our limitation act. And it is urged that section 16 was not considered by the court in the determination of Bemis v. Stanley. It is true, we then said ‘the decision of this question involves a construction of sections 15 and 20’ of the limitation law. The construction of those sections was clearly involved, but it by no means follows that the court did not consider other parts of the act. A statute should be so construed as to make it consistent in all its parts, and so that proper effect may be given to every section, clause, or part of the act. Illinois Cent. R. Co. v. Chicago, B. & N. R. Co., 122 Ill. 474, 13 N. E. Rep. 140; Hunt v. Railway Co., 121 Ill. 642, 13 N. E. Rep. 176; Steere v. Brownell, 124 Ill. 29, 15 N. E. Rep. 26. The opinion in the Bemis Case shows, as we think, that section 16 of the limitation act [Rev. St. c. 83] was within the contemplation of the court. In speaking of section 15 of the act it was said: ‘An action brought in this state upon a judgment rendered in another state is undoubtedly a civil action within the intent and meaning of this section of the statute, and, unless some other section of the act has provided a period of limitation to govern the time within which an action shall be brought in this state upon a foreign judgment, then section 15 must control. * * * Our view of the subject is that section 15 is broad enough to embrace the judgment sued upon in this case; that the suit on the judgment is a civil action, not otherwise specifically provided for, and hence barred in five years by the terms and conditions of the statute.’ Section 16 of the act, which is claimed to govern in this case, is as follows: ‘Actions on bonds, promissory notes, bills of exchange, written leases, written contracts, or other evidences of indebtedness in writing shall be commenced within ten years next after the cause of action accrued.’ It is said that the words ‘other evidences of indebtedness in writing’ necessarily include judgments, and therefore the limitation of actions upon such judgments is ten years, instead of five years, as provided in section 15. These words alone, without the words preceding, are clearly broad enough to include judgments and decrees for the payment of money. We held, in Jefferson v. Alexander, 84 Ill. 278, and perhaps in other cases also, that a judgment is an evidence of indebtedness in writing, from which ruling we find no occasion to recede. It does not, however, necessarily follow that a judgment is such ‘other evidence of indebtedness in writing’ as to be included within the sixteenth section of the statute. It is familiar that words of one statute may be required to be enlarged in their meaning, while in another statute the language may from the context be necessarily limited and contracted in its scope and operation. Gormley v. Uthe, 116 Ill. 645, 7 N. E. Rep. 73. It is also a general rule of statutory construction that general words, following an enumeration of particular cases, apply to cases of the same kind and description; and so a statute enumerating things inferior shall not by general words be construed so as to extend to and embrace those which are superior. Sedg. St. & Const. Law, 361; 1 Bl. Comm. 88; Woodworth v. Paine, Breese, 374; Hall v. Byrne, 1 Scam. 140. In the case last cited a statute allowing a defense denying the consideration in actions on notes, bonds, bills, and other instruments in writing for the payment of money, etc., was held not to apply to mortgages, the court saying: ‘Mortgages are clearly instruments of a higher dignity than bonds, promissory notes, or bills, because greater solemnity is required in their execution.’ A judgment for the payment of money is evidence of indebtedness of the highest dignity known to the law, and, unlike the evidence of indebtedness afforded by bonds, bills, leases, and written contracts, it imports verity. It operates as an estoppel on the party to deny its truthfulness. In Rae v. Hulbert, 17 Ill. 572, the defendant pleaded a set-off against the judgment sued on, which was disallowed on demurrer. It was contended in that case that the statute allowed a plea of set-off in an action on a judgment. The statute authorized the plea ‘in any action brought upon any contract or agreement, either express or implied.’ This court there said: ‘We cannot agree with counsel that a judgment is a contract within the meaning of the statute. It is the conclusion of the law upon the rights of the parties, and it is not very common that it is entered up by the agreement of the unsuccessful party, but the reverse is generally the case. In this statute the words ‘action,’ ‘contract,’ and ‘agreement,’ are used in their ordinary sense, and not with the intention of embracing every imaginable litigation upon every cause of action. A judgment is no more a contract than is a tort.' Without pursuing this branch of the subject further, it seems quite clear that a judgment is not evidence of indebtedness in writing of the like character, nature, or grade with notes, bonds, bills, written leases, or written contracts, enumerated in section 16, in advance of the general words which it is contended create a bar in actions upon judgments, but is evidence of indebtedness in writing of a higher and superior character. It cannot, therefore, be presumed to have been included with those enumerated of a lesser grade, although the effect may be to exclude such superior evidence of indebtedness from the operation of the act altogether, or to impose a shorter period of limitation under another provision of the statute.

The first section of the act of November, 1849, for which section 16 of the present act is a substitute, reads as follows: ‘All actions founded upon any promissory note, simple contractin writing, bond, judgment, or other evidence of indebtedness in writing caused or entered into after the passage of this act shall be commenced within sixteen years after the cause of action accrued, and not thereafter.’ It will be observed that the later statute omits the word ‘judgment’ before the general clause ‘or other evidence of indebtedness in writing.’ It is to be presumed that by the change in the phraseology some change was intended to be made in the rule of law, and would clearly indicate an intention to exclude judgments from the operation of the later enactment. It cannot be presumed that the omission was accidental, nor can a misapprehension of the legislature as to the effect of the change in the law be inferred. In construing this section, it is proper to consider it with reference to the state of the law before its adoption. Wright v. People, 101 Ill. 126;Railway Co. v. Binkert, 106 Ill. 298. By the twenty-fourth section of the act prior limitation statutes are expressly repealed. By the fifth section of chapter 66, Revision 1845, actions of debt on judgments of courts of record of this state might be brought within 20 years after the date of the judgment, and not thereafter. Actions upon other judgments were not...