Edward Thompson Co. v. Bristow
| Decision Date | 02 March 1926 |
| Docket Number | Case Number: 16436 |
| Citation | 1926 OK 188,116 Okla. 243,244 P. 429 |
| Parties | EDWARD THOMPSON CO. v. BRISTOW. |
| Court | Oklahoma Supreme Court |
¶0 1. Judgment -- Revivor of Dormant Judgment--Time -- Lack of Jurisdiction Because of Delay. Where a judgment plaintiff seeks to revive a dormant judgment, over the objection of the judgment debtor, and commences proceedings for revivor within a year next after the judgment becomes dormant by filing an application for revivor and giving notice to the judgment debtor, and the day for presenting the matter, as fixed in the notice, is beyond the expiration of a year after the judgment became dormant, the court is entirely wanting in power to revive the judgment on the day named in the notice, or at any subsequent date.
2. Same--Judgment Sustained. The record supports the judgment, and requires that the judgment, be affirmed.
Morris, Johnson & Wilhite, for plaintiff in error.
Morgan, Osmond & Morgan, for defendant in error.
¶1 The parties will be referred to herein as plaintiff and defendant, as they appeared in the court below. The proceeding in the county court was to revive a dormant judgment. The judgment was procured by plaintiff against defendant in the county court of Caddo county on the 26th day of November, 1917. An execution was issued against the defendant on the 5th day of February, 1919, and returned unsatisfied. On the 3rd day of February, 1925, the plaintiff filed in the case a motion to revive the judgment, and served notice on the defendant on the same day, fixing February 16, 1925, for hearing upon the motion. The defendant resisted the motion. The motion was denied, and the plaintiff appeals. It seems to be agreed that there is but one question for decision. It is about as follows: Has the court authority, under the statutes, to enter an order reviving a dormant judgment, where more than a year has elapsed after the judgment became dormant, where the application was filed and the notice of the hearing given within the year, but fixing the time for hearing beyond the expiration of a year, where the proceeding to revive the judgment is resisted by the judgment debtor?
¶2 The judgment became dormant on the 5th day of February, 1924. The application to revive was filed within a year next after the judgment became dormant, and the notice was given on the same day, fixing a date beyond the expiration of a year as the day for hearing the application.
¶3 The applicable statutes seem to be section 843, Comp. St. 1921, which provides:
¶4 And section 837, Comp. St. 1921, which, in part, provides:
"An order to revive an action * * * may be made forthwith, but shall not be made without the consent of the defendant, after the expiration of one year from the time the order might have been first made. * * *"
¶5 It seems that the last phrase, "but shall not be made * * * after the expiration of one year from the time the order might have been first made," means, with reference to reviving dormant judgments, that a party seeking an order of revivor has a year after the judgment becomes dormant within which to have the order of revivor made. Section 695, Comp. St. 1921, provides, in effect, that a judgment shall become dormant when five years have elapsed from the date of issue of the last execution. It follows that on the expiration of five years from and after February 5, 1919, the date the execution was issued, the judgment here sought to be revived became dormant; and the judgment plaintiff had a year in which to procure an order reviving it. This is the plain import of the language of the statutes. The language used in section 837, supra, plainly means that the day fixed in the notice for presenting the application must fall within the year and not after the expiration of the year. If the time was so fixed in the notice, it seems that an order might be made after the expiration of a year, if the moving party was not responsible for it being passed beyond the year. The language used in section 837, supra, is very similar to the language used in section 256, Comp. St. 1921, with reference to opening a judgment where the service is by publication only. The one provides that the order shall not be made "after a year," and the other provides that the order must be made "within the time" designated. Under section 256, supra, both the Kansas court and our own court have held the notice must fix a time for hearing within the year or limitation fixed. Satterlee v. Grubb, 38 Kan. 234, 16 P. 475; Hill v. Persinger, 57 Okla. 663, 157 P. 744. The language is so similar in effect that it seems a like rule should apply to the language of section 837, supra. In Tefft v. Citizens' Bank, 36 Kan. 457, 13 P. 783, the application for revivor was filed two days before the year expired, and notice given on the same day that the application would be presented 28 days after the year had elapsed. The order of revivor was held to be a nullity.
¶6 In Newton v. Arthur, 8 Kan. App. 358, 55 P. 466, a judgment creditor sought to revive a dormant judgment. The application was filed within a year, and notice was given of the hearing at a time within the year, but the application was not presented until the year had expired. The trial court denied the application, and the judgment was upheld on the ground that the judgment plaintiff had not been diligent in presenting the matter to the trial court and had let the year expire without getting the order of revivor. In Reaves v. Long, 63 Kan. 700, 66 P. 1030, the Kansas court held squarely that the court has no power to revive a dormant judgment after more than a year has expired from the date the judgment became dormant.
¶7 In Steinbach v. Murphy, 70 Kan. 487, 78 P. 823, the Kansas court held that the limitation must be given a strict construction, and the party seeking the order of revivor must bring himself within the provisions of the statute to entitle him to the order. Our revivor statutes were copied from the Kansas Code, and, at least, it must be said that the Kansas decisions are strongly persuasive. There seems to be no case directly in point from our own court. The plaintiff cites Neal v. LeBreton, 14 Okla. 538,...
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