Bashor v. Beloit

• Decision Date: 15 November 1911
• Citation: 119 P. 55,20 Idaho 592
• Parties: GEORGE W. BASHOR, Respondent, v. GEORGE W. BELOIT, Appellant
• Court: Idaho Supreme Court

119 P. 55

20 Idaho 592

GEORGE W. BASHOR, Respondent, v. GEORGE W. BELOIT, Appellant

Supreme Court of Idaho

November 15, 1911

DEMURRER-JUDGMENT-ACTION TO REVIVE-STATUTE OF LIMITATIONS-EXECUTION-ISSUANCE OF WITHIN FIVE YEARS-COMMON LAW-WRIT OF SCIRE FACIAS-ACTION ON JUDGMENT-CONSTITUTIONAL LAW-LEGISLATIVE POWER - EXCLUSIVE METHODS - INTEREST ON JUDGMENT.

(Syllabus by the court.)

1. Under the provisions of sec. 4051, Rev. Codes, an action to keep alive a judgment or decree of any court of the United States or of any state or territory within the United States may be commenced within six years from the date of the entry of the judgment.

2. Under the provisions of sec. 4470, Rev. Codes, the party in whose favor a judgment is given may at any time within five years after the entry thereof have a writ of execution issued for its enforcement.

3. Under the common law the owner of a judgment may bring an action on it as a debt of record in any court of competent jurisdiction and prosecute the same to final judgment notwithstanding his right to issue execution on the original judgment remained unimpaired, and notwithstanding the time for issuing an execution thereon had expired.

4. The legislature has the power to limit the time in which an action may be brought upon a judgment to revive it, and to limit the time in which execution may issue for the enforcement of a judgment, and it may extend the time for the commencement of an action to revive a judgment beyond the period of time allowed by law for the issuance of an execution to enforce such judgment.

5. The common-law writ of scire facias has been abolished by the provisions of sec. 4611, Rev. Codes, and as provided by sec 4474, in all cases other than for the recovery of money, the judgment may be enforced or carried into execution after the lapse of five years from the date of its entry, by leave of court, upon motion, or by judgment for that purpose founded upon supplemental pleadings.

6. By the enactment of said sec. 4474, it was not intended that the method therein provided for the revival of a judgment should be the only and exclusive method for keeping a judgment alive.

7. The right to commence and maintain an action on a judgment in this state is not dependent upon the right to issue an execution for the enforcement of such judgment, but is dependent upon and governed by the provisions of the statute limiting the time in which an action may be brought upon a judgment.

8. Under the laws of this state, there is one method of procedure for keeping alive a judgment for the recovery of money, and that is by bringing an action thereon within six years from the entry of said judgment; and there are two methods of keeping judgments, other than for the recovery of money, alive: 1. By action on the judgment within six years 2. By supplemental proceedings under the provisions of sec 4474, Rev. Codes.

9. Sec. 1539, Rev. Codes, has reference to compounding interest arising on contract, and does not apply to penalties and interest imposed by statute, and is intended as a regulation of interest on contracts and not of interest on judgments.

10. Under the provisions of subd. 4 of sec. 1537, seven per cent interest is allowed for money due on judgments, and under the provisions of sec. 1538, all money judgments bear interest at the rate of seven per cent per annum until satisfied.

11. Under the provisions of subd. 1 of sec. 4471, under an execution for the enforcement of a money judgment, the sheriff is required to satisfy the judgment and all the interest due thereon.

12. Under the provisions of sec. 4051, an action may be maintained on a domestic judgment, if commenced within six years after the entry of such judgment.

APPEAL from the District Court of the Second Judicial District for Nez Perce County. Hon. Edgar C. Steele, Judge.

Action to revive a judgment. Judgment for plaintiff. Affirmed.

Judgment of the trial court affirmed. Costs awarded to the respondent.

Ben F. Tweedy, for Appellant.

Sec. 4051, Rev. Codes, includes foreign judgments, while secs. 4470, 4474, and 4611 apply exclusively to domestic judgments. Domestic judgments are divided into two classes by the statutes: Those for the recovery of money, and those not for the recovery of money. Sec. 4470 relates to judgments of both classes, but sec. 4474 makes special provision for judgments of the second class and provides for their enforcement after the expiration of five years from their entry, and excluding judgments of the first class from its provisions, it follows that the enforcement of judgments of the first class is absolutely prohibited after the expiration of five years from their entry. (Mason v. Cronise, 20 Cal. 211; Rowe v. Blake, 99 Cal. 167, 33 P. 864; Bank v. Lucas, 26 Wash. 417, 90 Am. St. 748, 67 P. 252, 56 L. R. A. 812; Haupt v. Burton, 21 Mont. 572, 69 Am. St. 698, 55 P. 110.) The courts in the above cases have not held that a judgment whose enforcement is prohibited by a statute like sec. 4470 can, after it is incapable of enforcement, be a cause of action. (Kerns v. Graves, 26 Cal. 156; White v. Clark, 8 Cal. 512.)

Secs. 681 and 685, before amendment of sec. 685, of California code are the same as secs. 4470 and 4474 of our code (Dorland v. Hanson, 81 Cal. 202, 15 Am. St. 44, 22 P. 552), and under such statutes as these a judgment for the recovery of money could not be enforced after the lapse of five years. (Dorland v. Hanson, supra; Cortez v. Superior Court, 86 Cal. 274, 21 Am. St. 37, 24 P. 1011; McMan v. Superior Court, 74 Cal. 106, 15 P. 448; White v. Clark, supra; Kerns v. Graves, supra.)

The California rule is applied in Kansas. (Updegraff v. Lucas, 76 Kan. 630, 93 P. 630, 94 P. 121, 13 Ann. Cas. 860.) And when a judgment cannot be enforced, it is held that it cannot be a cause of action in a new action, commenced by service of summons after the judgment was "stone dead." (Mawhinney v. Doane, 40 Kan. 676, 17 P. 44; Brown v. Akeson, 74 Kan. 301, 86 P. 299; Smalley v. Bowling, 64 Kan. 818, 68 P. 630; also Beadles v. Fry, 15 Okla. 428, 82 P. 1041.)

"If the right to issue execution has been lost from the lapse of time or the inaction of the plaintiff, who has lost all means of reviving his judgment so as to become entitled to execution thereon, it has been held that the judgment is so far extinguished that it cannot support an action thereon." (2 Freeman on Judg., p. 751, sec. 432.)

A judgment incapable of immediate enforcement cannot be a cause of action. (23 Cyc. 1502, 1503; Pollard v. Rogers, 1 Bibb (Ky.), 473; Blair v. Caldwell, 3 Mo. 353.)

That secs. 681 and 685, before sec. 685 was amended, killed a judgment for the recovery of money is recognized by the supreme court of California in 1907. (Weldon v. Rogers, 151 Cal. 432, 90 P. 1062.)

Secs. 4470 and 4474 of our code were taken from California, and being adopted from that state it must be held that the legislature adopted with them the construction by that court given. So it must be held in Idaho that these sections kill a money judgment in five years from its entry, and absolutely prohibit its enforcement because presumed to be satisfied and discharged of record.

A judgment conclusively presumed to be paid cannot constitute a cause of action. (Bowman v. Holman, 53 Ore. 456, 99 P. 424.)

Eugene A. Cox, and Charles H. Chance, for Respondent Bashor.

It is apparent that no execution could be issued in California on a foreign judgment. Therefore, secs. 173 and 174 of the Civil Practice Act of 1850 could not be construed to refer to foreign judgments. On the other hand, if the five year statute of limitations were construed to apply to domestic judgments, then there would be the inconsistency of having execution issued on a judgment which was barred by the statute of limitations.

Judge Field held that the five year statute of limitations applied both to domestic and foreign judgments, and that the clause providing for the issuance of execution after five years was a legislative inadvertence. (Mason v. Cronise, 20 Cal. 212, 218. See, also, Hobbs v. Duff, 23 Cal. 596, 630; Hecht v. Slaney, 72 Cal. 363, 14 P. 88; Rowe v. Blake, 99 Cal. 167, 37 Am. St. 45, 33 P. 864; Citizens' National Bank v. Lucas, 26 Wash. 417, 90 Am. St. 748. 67 P. 252; Haupt v. Burton, 21 Mont. 572, 69 Am. St. 698, 55 P. 110; McDonald v. Dickson, 85 N.C. 248.)

Since the original decision in California, there has never been any suggestion that the California code section which corresponds to our section 4051 does not apply equally to domestic and foreign judgments. By changes in the statute, the reason for raising the question has apparently been eliminated. No such distinction has been recognized in the courts of Idaho (Leman v. Cunningham, 12 Idaho 136, 85 P. 212), and many titles are probably founded upon judgments renewed after the fifth year and before the expiration of the sixth year. Our code provisions upon this point were expressly adjudicated before we adopted them. (Ames v. Hoy, 12 Cal. 11; Stuart v. Lander, 16 Cal. 373, 375, 76 Am. Dec. 538; Quivey v. Hall, 19 Cal. 98; Trenouth v. Farrington, 54 Cal. 273; Rowe v. Blake, 99 Cal. 167-172, 33 P. 864; Humiston v. Smith, 21 Cal. 130.)

The statutory constructions adopted in cases cited have never been modified in California. Similar decisions are to be found in other states, but the California decisions would seem to foreclose these questions in our state.

Under our statute and the universal practice in this state, the costs become a part of the judgment. Interest due at the time of judgment is also computed and entered as a part of the judgment.

Sec 1539 of our codes, relating to compound interest, refers to compounding interest due by contract. It was never intended to apply to...