Denny v. Bean

• Decision Date: 11 February 1908
• Citation: 51 Or. 180,93 P. 693
• Parties: DENNY v. BEAN et al.
• Court: Oregon Supreme Court

93 P. 693

51 Or. 180

DENNY v. BEAN et al.

Supreme Court of Oregon

February 11, 1908

Appeal from Circuit Court, Polk County; William Galloway, Judge.

Suit by L.B. Denny against Agnes Bean and another. From a decree for plaintiff, defendants appeal. Modified and affirmed.

Plaintiff sues in equity to enjoin the issuance of a sheriff's deed to a purchaser at a sale on an execution issued out of the circuit court of Polk county on a transcript of a justice's judgment filed therein, to have declared void and canceled of record the transcript of the judgment and the execution thereon, and to cancel the judgment as settled and paid. Plaintiff alleges, in substance, that on April 23 1896, W.S. Bean commenced an action against him in the justice's court for District No. 2, of Polk county, and that on the _______ day of June, 1896, Bean secured judgment against him for $236.11; that about June 2, 1896, the sum of $62.15 was made on execution; that thereafter, and in the same month, plaintiff threatened to institute proceedings to set aside the judgment, claiming that he was never indebted to Bean in a sum greater than $54, and that before the time for appeal had expired he and Bean entered into an agreement and settlement, whereby the latter was to satisfy the judgment in consideration that plaintiff would not appeal or institute any other proceedings to annul the judgment; that on December 10, 1903, in violation of his contract, Bean caused a transcript of the judgment to be filed in the circuit court of that county, and afterwards assigned the same to Agnes Bean, who is his divorced wife; that Agnes Bean caused an execution to be issued out of the circuit court on October 13, 1904, which was levied on plaintiff's land and on November 26, 1904, the land was sold to Agnes Bean for the balance due on the judgment; and that the sale was confirmed about May 8, 1905. J.T. Ford, sheriff, is made a party defendant. The answer denies all of the averments of the complaint, excepting the issuance of the execution at the instance of Agnes Bean, the sale of the land, and its purchase by her and the confirmation thereof. After the taking of testimony findings were made in plaintiff's favor, and a decree was entered canceling the judgment and annulling all the proceedings taken for its enforcement, from which decree defendant appeals.

Oscar Hayter and Carey F. Martin, for appellants.

Frank Holmes, for respondent.

SLATER C. (after stating the facts as above).

It was admitted at the trial that the judgment was, in fact obtained on April 23, 1896, instead of in June as alleged and that about December 10, 1903, a transcript thereof was made and filed in the circuit court at the instance of the judgment creditor. The plaintiff, however, has failed to establish the settlement and agreement to cancel the judgment, as alleged by him. The consideration alleged for the making of the agreement was that plaintiff would not appeal from the judgment, or institute any other proceedings to cause the same to be set aside. At the time of making the agreement not to appeal plaintiff had no right of appeal. That had been lost to him by the expiration of the time limited in the statute in which an appeal might have been taken. What other legal proceedings, if any, plaintiff had in contemplation to cause the judgment to be annulled, is not shown. There is some evidence that at that time he may have had a cause of action in debt against Bean upon which he might have recovered a judgment in an amount equal to or greater than the balance due on this judgment. An agreement then, to surrender and cancel this indebtedness in payment and satisfaction of the judgment, and the actual surrender and cancellation thereof, with the correlative agreement by the judgment creditor to accept and receive the same in satisfaction and payment, would make a case, but it is not so alleged or proved. We are of the opinion, however, that there was no authority in law for the filing of the transcript of this judgment in the circuit court after the expiration of one year from its date, and consequently all of the proceedings based thereon are void. "Execution to enforce a judgment in a justice's court must not be issued against or levied upon the real property of the defendant; but when a judgment given by a justice has been duly docketed in the circuit court, thereafter it must be enforced as a judgment of such circuit court." Section 2232, B. & C. Comp. When this judgment was obtained the statute provided that, "Whenever a judgment is given in a justice's court in favor of any one for the sum of ten dollars or more, exclusive of costs or disbursements, the party in whose favor such judgment is given may, within one year thereafter, file a certified transcript thereof with the county clerk of the county wherein such judgment was given, and thereupon such clerk shall immediately docket the same in the judgment docket of the circuit court." Hill's Ann.Laws 1892, § 2103. By the next succeeding section such judgment is made a lien upon the real property of the defendant from the time of its docketing. No transcript of the judgment having been filed with the county clerk within one year after the judgment, the right to do so became extinguished, and the judgment creditor lost the means whereby he might obtain satisfaction...