Berkley v. Tootle
| Decision Date | 06 April 1901 |
| Docket Number | 11,856 |
| Parties | REBECCA J. BERKLEY v. KATE TOOTLE et al |
| Court | Kansas Supreme Court |
Decided January, 1901.
Error from Decatur district court; CHAS. W. SMITH, judge.
Judgment affirmed.
Richard S. Horton, and J. F. Peters, for plaintiff in error.
Waggener Horton & Orr, and Edward D. Osborn, for defendants in error.
This was a second attempt to obtain an order reviving a judgment and was made about two years after the judgment had become dormant. The first application to revive the judgment was made within one year after dormancy and within the time allowed by statute, but it was made before a judge at chambers who had no authority to entertain the application or to order a revivor. Being disqualified and without authority, the order which was made by him was without force and has been held to be a nullity. (Tootle v. Berkley, 60 Kan. 446, 56 P. 755.) The time within which an order reviving a dormant judgment may be made without consent is one year from the time when it could have been first made. (Civil Code, §§ 432, 433, 439; Gen. Stat. 1897, ch. 95, §§ 431, 432, 438; Gen. Stat. 1899, §§ 4697, 4698, 4704; Tefft v. Citizens' Bank, 36 Kan. 457, 13 P. 783.) As the present application was made two years after it could have been first made, it was too late, unless the previous illegal attempt to obtain an order of revivor in some way extended the time prescribed in the statute. The plaintiff relies on section 23 of the civil code (Gen. Stat. 1897, ch. 95, § 17; Gen. Stat. 1899, § 4267), which provides:
"If any action be commenced within due time and a judgment thereon for the plaintiff be reversed, or if the plaintiff fail in such action otherwise than upon the merits, and the time limited for the same shall have expired, the plaintiff, or, if he die and the cause of action survive, his representatives may commence a new action within one year after the reversal or failure."
It is argued that a proceeding to revive was begun in good time, which failed otherwise than on the merits, and that the present proceeding was brought within one year after the failure and within the time allowed in the section cited. The first attempt to revive, as we have seen, was an absolute nullity, and therefore the case stands as though no step had been taken or order made until this proceeding was begun. A proceeding in a court without jurisdiction is not an action, nor is the attempt to obtain an order of revivor before such a tribunal to be regarded as the commencement of an action.
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...1 Bates, Pl. & Pr. 638; State ex rel. Porter v. Falkenhainer, 321 Mo. 613; Tefft v. Citizens' Bank, 36 Kan. 457, 13 P. 783; Berkley v. Tootle, 62 Kan. 701, 64 P. 620; Reaves v. Long, 63 Kan. 700, 66 P. Steinbach v. Murphy, 70 Kan. 487, 78 P. 823; Thompson v. Bristow, 244 P. 430; M. P. Railr......
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