Armstrong v. Patterson

• Decision Date: 03 April 1915
• Docket Number: 17,884
• Citation: Armstrong v. Patterson, 97 Neb. 871, 152 N.W. 311 (Neb. 1915)
• Parties: W. F. H. ARMSTRONG, TRUSTEE, ET AL., APPELLEES, v. DAVID C. PATTERSON, APPELLANT
• Court: Nebraska Supreme Court

152 N.W. 311

97 Neb. 871

W. F. H. ARMSTRONG, TRUSTEE, ET AL., APPELLEES, v. DAVID C. PATTERSON, APPELLANT

No. 17,884

Supreme Court of Nebraska

April 3, 1915

REHEARING of case reported ante, p. 229.Former judgment of affirmance vacated and judgment of district court reversed and action dismissed.

Judgment reversed and action dismissed.

T. L Norval and M. O. Cunningham appeared on rehearing as additional counsel, amici curioe.

OPINION

SEDGWICK, J.

Our former opinion in this caseante, p. 229, followedSnell v. Rue,72 Neb. 571, 101 N.W. 10, reluctantly to be sure, but under the impression that "to establish such a limitation now would be legislation, and is not within the province of the courts' A rehearing was had, and we have been greatly assisted by eminent counsel as well as by the defendant himself.It appears that in Snell v. Rue, supra, the contention was that actions on domestic judgments were limited by section 16 of the code: "An action for relief not hereinbefore provided for, can only be brought within four years after the cause of action shall have accrued."Code, sec. 16.Whether a domestic judgment is a specialty within the meaning of section 10 of the code was not much considered.In the opinion it is said: "Where the right of enforcement of a judgment by execution still exists after the bar which it is claimed the statute interposes to an action has taken effect, the bar is of no avail so far as preventing the collection of the debt is concerned.Hence the statute fails of its purpose as a statute of repose.We cannot believe that the legislature intended to fix such a short time (four years) within which an action upon a domestic judgment might be maintained, and at the same time leave the judgment open to enforcement by execution."This appears to be the only point that was insisted upon or presented in the brief of counsel in that case.The court, by way of argument, referred to Tyler's Ex'rs v. Winslow,15 Ohio St. 364, with apparent approval, but not with the purpose of deciding whether such judgment is a specialty.In our former opinion herein, it was suggested that Tyler's Ex'rs v. Winslow had since been greatly discredited, if not overruled, by later decisions of that court, and we affirmed the judgment of the district court because it appeared that our former decision had been followed, and under the supposition that greater harm would come from overruling Snell v. Rue...