Berkley v. Tootle

• Decision Date: 12 June 1901
• Citation: 63 S.W. 681,163 Mo. 584
• Parties: BERKLEY v. TOOTLE et al., Appellants
• Court: Missouri Supreme Court

63 S.W. 681

163 Mo. 584

BERKLEY v. TOOTLE et al., Appellants

Supreme Court of Missouri, First Division

June 12, 1901

Appeal from Buchanan Circuit Court. -- Hon. Thos. J. Porter, Special Judge.

Affirmed.

B. P Waggener, Albert H. Horton and Edward D. Osborn for appellants.

(1) The judgment sued upon had become dormant by lapse of time and had not been revived. Secs. 455 and 439, ch. 95, Gen. Stat. Kan. 1897; secs. 425, 426, 427, 428, 432 and 433, ch. 95 Gen. Stat. Kan. 1897. A dormant judgment is not merely one upon which the right to issue execution has expired. It is dead and of no force. Its life is gone; its effectiveness has expired. State v. McArthur, 5 Kan. 283; Mawhinney v. Doane, 40 Kan. 676; Ballinger v Redhead, 1 Kan.App. 438. When a money judgment has lost its force, when it is "dead," and has lost all its effectiveness as an existing, living judgment, no suit can be brought upon it to recover the amount thereof. Such an action presupposes an existing judgment that is in force. The action can no more be maintained than if the alleged judgment was wholly void. There is a very material difference between an action brought upon an existing judgment to enforce it and recover the amount thereof, and an action brought to revive a judgment and then, after the judgment has been revived and given life and force again in accordance with the provisions of the statute, allowed to proceed as an action upon the revived judgment. After the judgment becomes dormant, no action seeking to recover upon the judgment the amount thereof and treating the judgment as an existing and valid one, can be maintained. Schultz v. Clock Co., 39 Kan. 334; Gruble v. Wood, 27 Kan. 535; Mawhinney v. Doane, 40 Kan. 682. This court has had these questions, arising under these very same statutes, under consideration in a comparatively recent case, and has held that no action to revive a dormant judgment can be maintained in Missouri. St. Louis Type Foundry Co. v. Jackson, 128 Mo. 128; Baker v. Stonebraker's Admrs., 36 Mo. 338. (2) While it is true that statutes of limitation merely affecting the remedy do not have force outside of the State that enacts them, and can not ordinarily limit the remedy upon the cause of action in another state, it is different with statutes that affect the validity, duration or existence of the right itself. The latter are not mere provisions of the law of procedure or of the administration of remedies. Morgan v. Railroad, 51 Mo.App. 523; Hoskins v. Sheddon, 70 Ga. 528; Dailey v. Railroad, 57 N.Y.S. 485; Hamilton v. Railroad, 6 L. R. A. 152; The Harrisburg, 119 U.S. 199; Gaines v. Miller, 111 U.S. 395; Brunswick Terminal Co. v. National Bank, 99 F. 635, 48 L. R. A. 625. (3) Where the judgment of a sister State is sued upon or is relied upon as an estoppel it can have no greater force and effect than it has by the laws of the State where rendered. Hanley v. Donoghue, 116 U.S. 1; Cheever v. Wilson, 9 Wall. 108; Chase v. Curtis, 113 U.S. 452; Chew v. Brumagen, 13 Wall, 497; Smith v. Moore, 53 Mo.App. 531; Brown v. Parker, 28 Wis. 21; Wood v. Watkinson, 17 Conn. 507; Bank v. Wheeler, 28 Conn. 433; Dow v. Blake, 148 Ill. 76; Faber v. Hovey, 117 Mass. 107; French v. Pease, 10 Kan. 54. (4) If by the laws of the sister State a judgment rendered by its courts is given a conditional effect, it can be given no other or greater effect when sued upon in Missouri. Any State may determine what force and effect the judgments of its courts shall have, provided it does not attempt to impose upon persons or property, without its jurisdiction, any liability. And the construction placed by the courts of the State upon its own statutes relating to this matter will be taken as the true construction, and will be read into such statutes as a part thereof by the courts of the other States. Elmendorf v. Taylor, 10 Wheat. 160; Shelby v. Guy, 11 Wheat. 367; Town of S. Ottawa v. Perkins, 94 U.S. 267; Fairfield v. Co. of Gallatin, 100 U.S. 147; Christie v. Pridgeon, 4 Wall. 203; Hoyt v. Thompson, 3 Sanford (N. Y.), 421; Hunt v. Hunt, 72 N.Y. 236; Jessup v. Carnegie, 80 N.Y. 441. (5) The circuit court of Buchanan county could not revive the judgment. The judgment sued upon was dead and without force when this action was begun. Upon such a judgment, no action could be maintained in the court below. St. Louis Type Foundry Co. v. Jackson, 128 Mo. 119; Baker v. Stonebraker's Admrs., 36 Mo. 338. No revivor was at any time asked for, and none was attempted to be made. It appears that in the Kansas courts an independent action may be brought to revive a dormant judgment, but it must be framed as an action with that object. The petition must pray for a revivor. An ordinary suit upon a judgment to recover the amount thereof is not such an action, and will not lie. This action is one upon a judgment to recover the amount thereof, and not an action to revive it. (a) A dead Kansas judgment can not be revived by the courts of another State, the latter having no jurisdiction in the matter. Amsbaugh v. Bank, 33 Kan. 105; 2 Minor's Institutes (3 Ed.), 853; Smith v. Bank, 5 Pet. 525. (b) The statute which creates the right to have a dead judgment revived limits that right to a period of one year. Secs. 439, 432, 433, chap. 95, Gen. Stat. Kan. 1897; Tefft v. Bank, 36 Kan. 457; Newton v. Arthur, 8 Kan.App. 360; Railroad v. Hine, 25 Ohio St. 629; Dailey v. Railroad, 57 N.Y.S. 485; Railroad v. Lacey, 49 Ga. 106; Hoskins v. Sheddon, 70 Ga. 528; O'Shields v. Railroad (Ga.), 6 L. R. A. 152. (c) The Kansas statutes provide that a notice of application for an order of revivor shall be served upon the adverse party, if he is within the State. An ordinary summons requiring the defendant to appear and answer or defend, and threatening a money judgment against him if he does not do so, is not sufficient, and gives the court no jurisdiction to revive the judgment. It does not notify him of the nature of the proceeding, or rather it notifies him that a wholly different sort of proceeding has been commenced against him, and gives him no warning that the judgment is to be revived. Gruble v. Wood, 27 Kan. 535; Mawhinney v. Doane, 40 Kan. 676; Guess v. Briggs, 54 Kan. 32; Lencke v. Treadway, 45 Mo.App. 507; Fowler v. Lamson, 146 Ill. 472; Russell v. Railroad, 113 Cal. 258; Ferguson v. Sherman, 116 Cal. 169, 37 L. R. A. 622; Marshall v. Sherman, 148 N.Y. 9; Lowry v. Inman, 46 N.Y. 120. The Kansas statute provides the particular mode of reviving a judgment. It provides that the revivor must be had within a certain time. It provides for a certain kind of notice. If any proceeding at all to revive a Kansas judgment can be maintained in Missouri, the revivor can be had only in the mode prescribed in the Kansas statutes, as construed by the Kansas courts. The Kansas statute for reviving the judgment has not been followed in Missouri. The judgment has not been revived properly in Kansas or Missouri. The Kansas judgment was dormant, dead, when the action below was commenced in Missouri. All proceedings upon a Kansas judgment while it is dormant, except to revive in time, are void and will be set aside. State v. McArthur, 5 Kan. 283.

Richard S. Horton, George W. Groves and W. K. James for respondents.

(1) Suit on the judgment was not barred by the statute of limitations of Missouri or Kansas. The statute of limitations to be applied is that of the State where suit is brought on the judgment, not of the State where the judgment was rendered. Gulick, v. Loder, 13 N. J. L. 68; Miller v. Brenham, 68 N.Y. 83; Reed v. Boyd, 13 Texas, 241; Spann v. Cummerford, 20 Texas, 216; Hepler v. Davis (Neb.), 49 N.W. 458. The statute of limitations of Kansas provide that suit may be brought on a domestic judgment within five years after the rendition thereof, or an execution issued thereon. G. S. Kan. 1897, ch. 95, sec. 12. There is a difference between the judgment becoming absolutely dead, by not being revived, and the losing of a lien. The right to revive may be lost, but the right to sue upon it is not lost, unless barred by the statute of limitations. Scroggs v. Tutt, 23 Kan. 189; Baker v. Hummer, 31 Kan. 325. (2) Respondent could maintain an action on such judgment within one year after March 8, 1897. Baker v. Hummer, 31 Kan. 325; United States v. Huston, 48 F. 207; Mawhinney v. Doane, 40 Kan. 676. (3) The order of revivor can not have any effect beyond the jurisdiction of the State of Kansas. Kay v. Walter, 28 Kan. 111; Weaver v. Cresman, 21 Neb. 675; Watkins v. Wortman, 19 W.Va. 78.

OPINION

BRACE, P. J.

This is an appeal from a judgment of the Buchanan 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 eighth day of March, 1892, the plaintiff obtained judgment in the district court of Decatur county, Kansas (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 & Company; Hiram Patterson, Henry Thomas and Charles Zook, partners, doing business under the firm name of Patterson, Thomas & Company; Moses D. Wells, Henry J. McFarland and R. B. Wells, partners, doing business in the firm name of M. D. Wells & Company; 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...