Berkley v. Tootle

• Decision Date: 14 May 1901
• Citation: 163 Mo. 584,63 S.W. 681
• Parties: BERKLEY v. TOOTLE et al.
• Court: Missouri Supreme Court

63 S.W. 681

163 Mo. 584

BERKLEY v. TOOTLE et al.

Supreme Court of Missouri, Division No. 1.

May 14, 1901.

LIMITATIONS — DORMANT JUDGMENT — RIGHT OF ACTION.

Under 2 Gen. St. Kan. 1897, c. 95, where the judgment has been permitted to become dormant by the neglect of the creditors to issue execution thereon for five years, and such judgment has not been revived in the manner provided in the statute, and no suit on the judgment has been brought within one year after the expiration of the five years, no suit can thereafter be maintained upon it. Chapter 95, §§ 12, 15, provides that an action on a judgment is barred where no execution is issued after five years, unless the case falls within some of the exceptions of the statute, one of which is absence from the state. Held, that where a judgment had been rendered against nonresident defendants, and no execution had issued thereon within five years, though the judgment became dormant the one year within which an action thereon could be brought did not expire pending such absence from the state, and therefore an action on such judgment, brought in the state of Missouri after such time, was not barred by laches.

Appeal from circuit court, Buchanan county; Thomas J. Porter, Special Judge.

Action by Rebecca J. Berkley against Kate M. Tootle and others. Judgment for plaintiff, and defendants appeal. Affirmed.

Albert H. Horton, B. P. Waggener, and Edward D. Osborn, for appellants. Richard S. Horton, George W. Groves, and W. K. James, for respondent.

BRACE, P. J.

This is an appeal from a judgment of the Buchanan county circuit court in favor of the respondent against the appellants, Kate M. Tootle, William W. Wheeler, Joshua Motter, and Frances M. Dameron, for the sum of $3,302.85, in an action on a judgment of the Decatur county district court in the state of Kansas. There was no dispute about the facts, which are as follows: On the 8th day of March, 1892, the plaintiff obtained judgment in the district court of Decatur county, Kan. (a court of general jurisdiction, having jurisdiction of the parties and of the subject-matter), against Kate M. Tootle, William E. Hosea, William W. Wheeler, Joshua Motter, and Frances M. Dameron, partners doing business under the firm name of Tootle, Hosea & Co., Hiram Patterson, Henry Thomas, and Charles Zook, partners doing business under the firm name of Patterson, Thomas & Co., Moses D. Wells, Henry J. McFarland, and R. B. Wells, partners doing business in the firm name of M. D. Wells & Co., E. P. Reed, and S. V. Pryor & Son, a co-partnership, for the sum of $2,052.85. Thereafter the said defendants prosecuted a petition in error to the supreme court of the state of Kansas, by which court said judgment was affirmed on the 6th day of June, 1896, and its mandate filed in said district court on the 27th of June, 1896. Pending these proceedings, on the 17th of April, 1893, the said Hosea died at his domicile in Buchanan county, Mo., and in that month letters of administration of his estate were duly granted by the probate court of said county, and during all the time of the pendency of these proceedings in the district court of Decatur county, and in the supreme court of Kansas, the appellants were residents of the state of Missouri, as they now are and ever since have been, and have not been within that state since the rendition of the judgment by the said Decatur county district court. On the 3d day of December, 1897, on motion of the respondent, notice of which was given by publication, but of which appellants had no actual knowledge, an order was made by the judges of said district court reviving said judgment against the administrators of the said William E. Hosea, deceased, and against the other of said judgment defendants, and each of them. Afterwards, on the 15th of January, 1898, this suit was instituted by the respondent in the circuit court of Buchanan county, Mo., against all of said defendants, except Hosea, deceased; but, the appellants being the only ones served, was dismissed as to the others. The appellants answered, denying the allegations of the petition; pleading the statute of limitations and certain statutes of the state of Kansas; setting up thereon the defense upon which they rely, that at the time this suit was brought the said judgment, under the laws of Kansas, was dead, and no action could be maintained thereon. Afterwards, on the 24th day of February, 1898, the appellants, with the said Moses Wells, Henry J. McFarland, and R. P. Wells, partners as aforesaid, appearing specially for that purpose, filed their motion in the district court of Decatur county, Kan., to set aside the order of the judge of said court of the 3d of December, 1897, reviving said judgment, which motion was on the 9th day of March, 1898, sustained as to the said Hosea, deceased, and his administrators, and overruled as to the other defendants. Thereupon appellants, with the said Wells, McFarland, and Wells, prosecuted a petition in error, with supersedeas, from the order of said district court overruling the motion to set aside the order reviving said judgment to the supreme court of Kansas, and on the 3d day of June, 1898, filed their motion in the circuit court of Buchanan county, Mo., for a continuance of this suit until the petition in error of appellants and the said Wells, McFarland, and Wells should be heard and determined by the supreme court of Kansas, which motion was overruled; and on the same day the case, coming on for trial, was tried, and the judgment rendered, from which this appeal was taken on the 14th of June, 1898. No execution was ever issued, and no payment was ever made, on the Kansas judgment, nor was it ever exhibited as a demand against the estate of Hosea in the probate court of Buchanan county. On the 8th of April, 1899, the ruling of the district court of Decatur county, refusing to set aside the order of revival aforesaid, was reversed by the supreme court of Kansas, on the ground that the judge who made the order of revival was of counsel for the judgment plaintiff, and had a pecuniary interest in the judgment to the extent of his fee, for which he had filed an attorney's lien. Tootle v. Berkley, 60 Kan. 446, 56 Pac. 755.

1. By the laws of Kansas, a personal judgment against two parties is a joint and several obligation, and an action upon it can be maintained against either of the judgment debtors separately. 2 Gen. St. Kan. 1897, c. 114, p. 590; Read v. Jeffries, 16 Kan. 534; Stout v. Baker, 32 Kan. 113, 4 Pac. 141. And in considering this case the judgment in question may be treated simply as a joint and several judgment against the appellants, and the other parties thereto may be disregarded. In that state an action at law may be maintained on a domestic judgment. The right of action accrues at the date of the rendition of the judgment, and, when no execution has been issued, is barred by the statute of limitations of that state by the lapse of five years from its date, unless the case falls within some of the exceptions of that statute, one of which is absence from the state. 2 Gen. St. Kan. 1897, c. 95, §§ 12, 15; Burnes v. Simpson, 9 Kan. 658; Hummer v. Lamphear, 32 Kan. 439, 4 Pac. 865; Bank v. Bradbury, 56 Kan. 355, 43 Pac. 254. By the laws of this state in force at the time this suit was brought, an action on the judgment of a court of record of a sister state was not barred until after the lapse of 20 years from its date. Rev. St. 1889, § 6796. If we had only the statutes of limitations eo nomine of these states to deal with in this case, there would be no difficulty in sustaining the judgment of the circuit court; for it was sell-settled law in this state, prior to the Revision of 1899, when a new section (section 4280) was ingrafted upon our statute of limitations, changing the rule, that, in an action on a judgment of a sister state, the statute of limitation of the state in which suit is brought is to be...