Fowler v. Pilson, 7757.

• Decision Date: 13 October 1941
• Docket Number: No. 7757.,7757.
• Parties: FOWLER v. PILSON et al.
• Court: U.S. Court of Appeals — District of Columbia Circuit

74 App. DC 340, 123 F.2d 918 (1941)

FOWLER v. PILSON et al.

No. 7757.

United States Court of Appeals for the District of Columbia.

Decided October 13, 1941.

Rehearing Denied December 6, 1941.

S. Wallace Dempsey and Bruce Fuller, both of Washington, D. C., for appellant.

Arthur Hellen and Stanton C. Peelle, both of Washington, D. C., for appellees.

Before GRONER, Chief Justice, and EDGERTON and RUTLEDGE, Associate Justices.

RUTLEDGE, Associate Justice.

Plaintiff, appellant here, is the assignee of a judgment rendered against defendant Raymond H. Pilson¹ in 1930 by a court of the State of California. By his creditor's bill, filed in 1937, he seeks to have a lien for payment of the amount of the judgment charged upon defendant's interest in the estate of his grandfather, Benjamin F. Pilson. The trial court dismissed the bill, holding that the present suit has been barred by the statute of limitations. The principal question on the appeal is whether this decision was right.

Section 343, Title 24, D.C.Code (1929), provides: "Every action upon a judgment or decree rendered in any State or Territory of the United States or in any foreign country shall be barred if by the laws of such State, Territory, or foreign country such action would there be barred and the judgment or decree be incapable of being otherwise enforced there."

If the section is controlling, reference to the law of California must be made to apply it. We think the section applies, notwithstanding plaintiff's argument to the contrary. He urges that this suit is not an "action upon a judgment * * * rendered in any State," but is "an equitable action to reach property within the jurisdiction of this Court." From this he concludes that the California statutes have no pertinence, the law properly applicable being the "rule of limitations" followed in the District of Columbia, "particularly on the lapse of 20 years, under the common law." The premise obviously confuses the nature of the relief and of the proceedings appropriate to secure it with the foundation of the claim which plaintiff asserts to show he is entitled to the remedy. It is contradicted, too, by his own equally fervent insistence that the judgment has not been barred in California, is still enforceable there though not by action, and therefore requires application of Section 343 to permit him to maintain this suit.

This argument presents the substantial question, and we therefore turn to the pertinent California statutes. They are Sections 335, 336 and 685 of the Code of Civil Procedure, in material parts as follows:

"§ 335. The periods prescribed for the commencement of actions other than for the recovery of real property, are as follows * * *."

"336. Within five years: 1. An action upon a judgment or decree of any court of the United States or of any state within the United States. * * *"

"685. In all cases the judgment may be enforced or carried into execution after the lapse of five years from the date of its entry, by leave of the court, upon motion, and after due notice to the judgment debtor accompanied by an affidavit or affidavits setting forth the reasons for failure to proceed in compliance with the provisions of section 681² of this code. The failure to set forth such reasons as shall, in the discretion of the court, be sufficient, shall be grounds for the denial of the motion.

"Judgment in all cases may also be enforced or carried into execution after the lapse of five years from the date of its entry, by judgment for that purpose founded upon supplemental proceedings; but nothing in this section shall be construed to revive a judgment for the recovery of money which shall have been barred by limitation at the time of the passage of this act."

The parties differ concerning the effect to be given these statutes in the construction and application of Section 343 of the District of Columbia Code. Plaintiff urges that the California statutes bar not the judgment itself, which retains vitality for enforcement by execution,³ but only the remedy by action upon the judgment. Furthermore, he seems to assert, though not with clarity, that "action," as used in Sections 335 and 336, does not include suits in equity, such as the present one. Defendant does not deny that the California judgment might be enforced there through application of the special procedure on execution, if property could be found amenable to that process, notwithstanding the five-year period allowed for enforcement by action has expired. But he insists this procedure is not only exclusive, but discretionary, with the California court; that the steps required to bring it into effect have not been taken; and that until this is done the judgment is entirely unenforceable in California. Consequently he concludes that the conditions of the District statute have been fulfilled, in that action has been barred in California by Section 336 and the judgment is "incapable of being otherwise enforced there."

We think it is clear that Section 336 of the California Code bars suits in equity as well as actions at law. It includes specifically "an action upon a judgment or decree * * *." (Italics supplied) Moreover, Section 335 provides: "The periods prescribed for the commencement of actions other than for the recovery of real property, are as follows." (Italics supplied) The framers of the California Code were not splitting equitable and legal hairs by using the single word "actions" rather than "actions at law and suits in equity."⁴ The same is true regarding the District statute, Section 343. It seems clear therefore that this suit could not have been maintained in the California courts if it had been brought there when it was begun here. This conclusion is sustained by the California decisions, which are uniform in holding that independent proceedings for enforcement of the judgment cannot be maintained after the lapse of five years from its entry,⁵ whether they be legal or equitable in the character of the relief sought. The special procedure by execution is available only in the suit, and therefore the court, in which the judgment was rendered. Apart from this, the California law makes no provision, except by revival, for giving effect or enforcement to a judgment more than five years old. It may be noted also that our Section 343 does not in terms require, as plaintiff seems to argue, that the California judgment be "barred" in California. The language is, "Every action upon a judgment or decree rendered in any State * * * shall be barred if by the laws of such State * * * such action would there be barred * * *." (Italics supplied) The present suit is therefore barred by Section 343, unless it has been saved by the conjunctive condition, "and the judgment or decree be incapable of being otherwise enforced there," i. e., in California.

This condition presents the crucial question. Although the present suit would have been barred in California when it was begun here, was the judgment "incapable of being otherwise enforced there"? Plaintiff says the special procedure on execution (Section 685 of the California Code) provides a method of enforcing the judgment within the meaning of Section 343. Literally and most broadly interpreted, the statute supports this view. There is at least a possibly available means of securing satisfaction of the judgment, perhaps one more expeditions and not less certain than suing upon it to revive it or give it effect in some other way.

But defendant insists that the judgment is not enforceable, within the intent of Section 343, because the remedy by execution is not a matter of right but discretionary with the court for cause shown, and cause has not been shown nor discretion called into play. Until this is done, it is said, it cannot be assumed that cause could be shown or that the discretion would be exercised favorably in plaintiff's behalf, and therefore the judgment is dormant, just as it would be if barred by limitations but subject to revival by suit for that purpose.⁶ It is said that the purpose of Section 343, taken as a whole, is to provide a limit of time for commencing action on foreign judgments, and that enforceability as contemplated by the section must relate to the time action is begun here, not to contingencies which may happen only later or not at all.

To give the words "otherwise enforced" the broadest possible meaning would produce unusual, if not incongruous, results. It would be holding, in effect, that Congress intended the courts in the District to give relief on foreign judgments which could not be had in the jurisdiction of origin. This might be greater than, or merely different from, that afforded by the latter. One obvious general purpose of the statute was to bring about uniformity between the two jurisdictions in the time allowed for enforcing the judgment by suit. Another perhaps was to achieve uniformity in the scope and kinds of substantive relief available, though not always in the forms and procedures for making it so.⁷ Both purposes would be defeated by the broad interpretation for which plaintiff contends. Thus, in the present case, although the judgment now would be enforceable in California only by the special execution procedure (or by revival), in the District all other forms of relief, now outlawed in California, would be available. The present suit, to establish the judgment as a lien on property here, could be maintained though a similar one could not be had in California. The same would be true concerning a suit upon the judgment to obtain a personal judgment against the defendant. The catalogue need not be recited. The sum of the matter, in plaintif...