Baker Steel & Machinery Co. v. Ferguson

• Decision Date: 23 February 1940
• Docket Number: 30671.
• Citation: 290 N.W. 449,137 Neb. 578
• Parties: BAKER STEEL & MACHINERY CO. v. FERGUSON.
• Court: Nebraska Supreme Court

290 N.W. 449

137 Neb. 578

BAKER STEEL & MACHINERY CO. v. FERGUSON.

No. 30671.

Supreme Court of Nebraska.

February 23, 1940

Syllabus by the Court.

1. A stay bond given to obtain a stay of execution as authorized by section 20 1507, Comp.St.1929, when recorded as provided by section 20-1510, Comp.St.1929, is a judgment within the purview of the statutes providing for the revivor of dormant judgments.

2. Under the provisions of section 20-1420, Comp.St.1929, a proceeding to revive a dormant judgment may be instituted at any time within ten years after it becomes dormant.

3. A statute which makes a stay bond a judgment against the surety is not inconsistent with the due process clauses of the state and federal Constitutions.

4. The only defenses available against an application to revive are that there is no judgment to revive or that the purported judgment is absolutely void, and that the judgment was paid or otherwise discharged.

5. The validity of an assignment of a dormant judgment may not be adjudicated in a proceeding to revive it.

Appeal from District Court, Douglas County; Rine, Judge.

Action by L. C. Ferguson against the Baker Steel & Machinery Company, wherein the plaintiff obtained a judgment. A stay bond was filed, in which the Western Surety Company appeared as surety. The judgment became dormant and thereafter L. C Ferguson and Thomas W. Ferguson, as assignee, filed their application for revivor. From an order reviving the judgment against the Western Surety Company, the Western Surety Company appeals.

Affirmed.

Hotz & Hotz, of Omaha, for appellant.

Edson Smith and Kennedy, Holland, DeLacy & Svoboda, all of Omaha for appellees.

Heard before SIMMONS, C. J., and ROSE, EBERLY, PAINE, CARTER, MESSMORE, and JOHNSEN, JJ.

CARTER, Justice.

This is an appeal from an order of the district court for Douglas county, reviving a dormant judgment against the Baker Steel & Machinery Company and the Western Surety Company, the latter company being the signer of a stay bond given to meet the requirements of section 20-1507, Comp.St.1929, to obtain a nine months' stay of execution. The Western Surety Company brings the case to this court for review.

The record discloses that on September 28, 1927, one L. C. Ferguson obtained a judgment against the Baker Steel & Machinery Company in the amount of $3,637.79, with interest thereon at 7 per centum per annum from October 1, 1927. On October 17, 1927, a stay bond was filed under the provisions of section 20-1507, Comp.St.1929, in which the Western Surety Company appeared as surety. Five years after the entry of the judgment it became dormant. On July 5, 1933, L. C. Ferguson and Thomas W. Ferguson, as assignee, filed their application for a revivor of the judgment. Service of the conditional order of revivor was had upon the Western Surety Company by the delivery of two certified copies of said order to the director of the department of insurance of the state of Nebraska, and upon the Baker Steel & Machinery Company by delivering a copy to Clifford J. Hotz, president, and by leaving a copy at the last usual place of business of the said corporation in Douglas county. The judgment was revived against the Baker Steel & Machinery Company on August 23, 1933, and kept in force by the issuance of an execution on August 19, 1938. On December 14, 1938, the judgment was revived against the Western Surety Company after innumerable unexplained delays dating from 1933. It is from this order that the appeal was taken.

The primary question involved is whether a stay bond given under the provisions of section 20-1507, Comp.St.1929, is a judgment within the purview of the statute providing for the revivor of dormant judgments. The stay bond statute provides in part: " The sureties for the stay of execution may be taken and approved by the clerk, and the bond shall be recorded in a book kept for that purpose, and have the force and effect of a judgment confessed from the date thereof against the property of the sureties, and the clerk shall enter and index the same in the proper judgment docket, as in the case of other judgments." (Italics ours.) Comp.St.1929, § 20-1510. Another statute provides that an execution shall issue against the surety upon expiration of the stay. Comp.St. 1929, § 20-1513. The question is one of first impression in this state, although there are cases which point to the proper result. In State v. Fleming, 21 Neb. 321, 32 N.W. 73, this court pointed out that one of the conditions imposed upon a judgment debtor to obtain a stay was that execution would issue if payment was not made on expiration of the stay. And in State v. Painter, 117 Neb. 42, 219 N.W. 794, the court stated that it knew of no authorization for the issuance of an execution except on a judgment.

The argument is advanced that the bond cannot be a judgment for the reason that it is contractual in its nature and contains no statement that it is a judgment or that it may be summarily enforced as a judgment. Appellant overlooks the fact that, as the bond was given with the statute existing which provides that it should have the force of a judgment...