Berkson Bros. v. Cox

• Decision Date: 02 December 1895
• Citation: 73 Miss. 339,18 So. 934
• Court: Mississippi Supreme Court
• Parties: BERKSON BROS. v. W. H. COX ET AL

18 So. 934

73 Miss. 339

BERKSON BROS. v. W. H. COX ET AL

Supreme Court of Mississippi

December 2, 1895

October 1895

FROM the circuit court of Holmes county, HON. C. H. CAMPBELL Judge.

This was an action brought by appellants, on December 21, 1894 upon a judgment in their favor, rendered by the circuit court of Holmes county, on November 28, 1887. The defendants (appellees here) plead the seven years' statute of limitations, to which plaintiff filed two replications. The first replication set up that an execution had been issued on the judgment on December 28, 1887, and within seven years next preceding the institution of the suit, on which there had been a return of nulla bona on March 14, 1888. The second averred that, on April 18, 1890, and on May 6, 1890, and at other times within seven years next before suit brought, the defendants, in letters written and signed by them acknowledged the justice and validity of the debt evidenced by the judgment. Demurrers to these declarations were sustained, and the action dismissed.

Section 2688 of the code of 1880, of which § 2757 of the code of 1892 is a rescript, is as follows:

"In actions founded upon any contract, an acknowledgment or promise shall not be evidence of a new or continuing contract, whereby to take any case out of the operation of the provisions of this chapter or to deprive any party of the benefit thereof, unless such acknowledgment or promise be made or contained by or in some writing signed by the party chargeable thereby; and where there shall be two or more joint contractors, one or more of them shall not lose the benefit of the provisions of this chapter so as to be chargeable, by reason only of an acknowledgment or promise made or signed by any other or others of them."

Section 2674 of the code of 1880, carried forward into the code of 1892 as § 2743 thereof, is as follows:

"All actions founded on any judgment or decree rendered by any court of record in this state shall be brought within seven years next after the rendition of such judgment or decree and not after; and no execution shall issue on any such judgment or decree after seven years from the date of the issuance of the last preceding execution on such judgment or decree."

Affirmed.

E. F. Noel, for the appellant.

1. In Buckner v. Pipes, 56 Miss. 366, and Stith v. Parham, 57 Ib., 291, it was declared that judgments might be kept alive perpetually by successive executions within seven years of each other; that the lien expired seven years from the rendition of judgment, and that, if a new lien was desired, suit must be brought within seven years from the rendition of the judgment.

In the case of Hall v. Green, 60 Miss. 57, it is announced by the court that "more than seven years intervened between the rendition of the judgment and the filing of the bill, and, consequently, it constituted no lien on any property of any sort. It was valueless, except as affording the basis for the issuance of executions or the bringing of a new suit."

This case is later than the other two, and announced the different doctrine that a suit might be brought where the judgment has been kept alive by executions, as was done in this case.

2. Even if the action would otherwise have been barred, it is not, in view of the subsequent acknowledgments of the defendants. The original action was founded on contract, and the judgment is but record evidence of the contract indebtedness. Code 1880 § 2688; code 1892, § 2757. The plaintiffs surely should not be treated as being in a worse position by the reduction of their demand to judgment than they would have been had it remained an unadjudicated claim. While the written acknowledgment would not revive the judgment, it would re-establish the indebtedness. The statute above cited is a limitation upon the mode of renewing a barred debt, and is not the creation of a hitherto unpossessed right. It...