Beekman v. Hamlin

• Decision Date: 18 June 1890
• Citation: 24 P. 195,19 Or. 383
• Parties: BEEKMAN v. HAMLIN.
• Court: Oregon Supreme Court

24 P. 195

19 Or. 383

BEEKMAN v. HAMLIN.

Supreme Court of Oregon

June 18, 1890

Syllabus by the Court.

Appeal from circuit court, Jackson county; R.S. BEAN, Judge.

This is a proceeding to revive a judgment under section 295 Hill's Code. The plaintiff alleges in his motion for leave to issue execution that on the 5th day of February 1861, he recovered a judgment against the defendant in the circuit court of Jackson county, Or., in an action at law in which said C.C. Beekman was plaintiff, and said James Hamlin was the defendant, for the sum of $751.43, with interest thereon from said date at the rate of 1 1/2 per cent, per month; and also for the further sum of $756.32, with interest thereon at the rate of 2 1/2 per cent. per month, and the costs and disbursements of said action; which judgment was duly entered on the journal record of said court on the 5th of February, 1861; and on the 28th day of February, 1861, was duly entered on the judgment lien docket of said court. That no payments have been made on said judgment, and that the whole amount of principal and interest, as therein stated, is now due to the plaintiff. That no execution has been issued on said judgment for more than 20 years. Then follows a prayer for leave to issue an execution for said sums, with interest at the rate specified in the motion. The defendant's answer contains some denials, but they are not full or specific, leaving it somewhat uncertain what the defendant intended to deny. The answer alleges that the defendant was not served with notice of the filing of the amended complaint in the original action. After alleging some other argumentative matter that has no relevancy whatever the answer contains this allegation: That said alleged judgment has been allowed to remain dormant for about 28 years, during all of which period the defendant has owned property, both real and personal, in his own right, which property was subject to execution, and which was amply sufficient to have satisfied said judgment; and the defendant avers that for about the period of 26 years he was absolutely ignorant that the said alleged judgment appeared of record against him, and that during that period of time he had several settlements with the plaintiff, had money and other articles of value deposited with him and in his care, and withdrew the same from his care at defendant's pleasure and that during all that period of time, and not until the last settlement was had between the plaintiff and defendant, did the plaintiff mention the fact that he held the alleged judgment against the defendant. Some other facts are alleged, which need not be specially noticed. The record recites that the court sustained a demurrer to subdivisions 3 and 5 of the defendant's answer, but the demurrer nowhere appears in the transcript, nor does it anywhere appear on what ground said demurrer, if any was filed, was sustained. On the trial the defendant offered evidence tending to prove the matter in his answer, all of which was objected to and excluded, and exceptions taken. At the trial, the plaintiff introduced a certified copy of the judgment roll in the case of Beekman v. Hamlin, and rested. The defendant sought to introduce evidence tending to prove facts showing that said judgment had been paid; that is, that several times after the rendition of the judgment said parties had various business transactions and full settlements; but all of this evidence was excluded, and exceptions taken. The court then directed a verdict for the plaintiff.

In this state, a judgment upon which no execution has been issued, nor attempt made to enforce the same for 20 years, is presumed to have been paid.

. In such case, it is a presumption of law, and can be rebutted only by some positive act of unequivocal recognition like part payment, or a written admission, or at least a clear and well identified promise, intelligently made, within the period of 20 years.

(Syllabus by the Court.)

A defendant cannot answer and make a full defense on the merits, without making a general appearance in spite of his special appearance; and when he does so he invokes the judgment of the court, and submits himself and his rights to its jurisdiction, and can no longer be heard to say that it had no jurisdiction.

Francis Fitch, for appellant.

P.P. Prim, H.K. Hanna, and C.W. Kahler, for respondent.

STRAHAN, J., (after stating the facts as above.)

The judgment sought to be revived in this case was rendered on the 5th day of February, 1861, and the record does not show that any execution was ever issued thereon. This proceeding was commenced on the 19th day of March, 1889, so that more than 28 years intervened between the date of the entry of judgment and this attempt to enforce it. The only question I have thought it necessary to consider is, what effect has the lapse of time upon the right to enforce this judgment independent of the statute of limitations? in other words, what would be the rights of the parties in this case if no statute of limitations were in force in this state? And this presents the question, what effect has the lapse of time, in this state, upon the right of a party to have a judgment renewed by the statutory proceedings? Does the common-law presumption of payment after 20 years arise in such case, and what is its effect? Section 172, Wood, Lim., says: "In all those states where sealed instruments or 'specialties,' as they are technically called, are expressly brought within the statute, the statute begins to run from the time when a cause of action arises thereon, and the bar is complete at the expiration of the statutory period; while, in those states where this class of instruments are not provided for, the common-law presumption of payment attaches from the time when the cause of action arises and becomes complete as a presumptive bar at the expiration of 20 years from that time; and the mere lapse of 20 years, without any demand of itself, raises a presumption of payment." And the same author says, in section 30 of the same work, that "a judgment obtained in the United States court, or in the courts of the state, where the remedy is sought, is a specialty within the provision of the statute;" that is, the statute in relation to specialties, --20 years. "The rule of presumption, when traced to its foundation," is said to be "a rule of convenience and policy, --the result of the necessary regard to the peace and security of society. No person ought to be permitted to lie by whilst transactions can be fairly investigated and justly determined, until time has involved them in uncertainty and obscurity, and then ask for an inquiry. Justice cannot be satisfactorily done, when parties and witnesses are dead, vouchers lost or thrown away, and a new generation has appeared on the stage of life, unacquainted with the affairs of a past age, and often regardless of them." After stating the inconveniences which necessarily result from a contrary rule, the court in the same case says: "In a word, the most solemn muniments are presumed to exist in order to support a long possession; the most solemn of human obligations lose their binding efficacy, and are presumed to be discharged after many years." Foulk v. Brown, 2 Watts, 216. So in Tilghman v. Fisher, 9 Watts, 441, the court said: "Such a lapse of time, in the absence of repelling evidence, is sufficient in law, without more, to raise a presumption of payment that would be binding upon both court and jury, so as to entitle the defendant, under a plea of payment, to a verdict and judgment in his favor. But being merely a presumption of the defendant's having made payment, it may be rebutted by proof of intervening circumstances, such as a demand of payment, payment of part by the obligor, his admission that the debt is still due, or his inability to pay it within the twenty years." And in Rhodes v. Turner, 21 Ala. 210, the principle under consideration was directly applied to a judgment, the court saying: "If a final judgment had been rendered, according to the principles of the common law, it would be presumed to have been paid after the expiration of twenty years; and, if the parties allow this period to elapse without taking any steps...