Halmes v. Dovey

• Decision Date: 05 March 1902
• Docket Number: 11,144
• Citation: 89 N.W. 631,64 Neb. 122
• Parties: PETER HALMES, APPELLEE, v. GEORGE E. DOVEY ET AL. APPELLANTS
• Court: Nebraska Supreme Court

89 N.W. 631

64 Neb. 122

PETER HALMES, APPELLEE, v. GEORGE E. DOVEY ET AL. APPELLANTS

No. 11,144

Supreme Court of Nebraska

March 5, 1902

APPEAL from the district court for Cass county. Heard below before RAMSEY, J. Affirmed.

Syllabus by the Court

1. The right of a judgment creditor to take out an execution on his judgment is a substantial right; and this right can only be taken away or suspended by some act, suit, or proceeding for this purpose in compliance with law.

2. A judgment lien is created by statute, and is destroyed by statute if its provisions requiring the taking out of an execution are not complied with.

3. When a dormant judgment is revived, it will operate as a lien only on the real estate which the judgment debtor may own at the time of the revivor.

Commissioners' opinion. Department No. 2. Appeal from district court, Cass county; Ramsen, Judge.

Action by Peter Halmes against George E. Dovey and others. Judgment for plaintiff. Defendants appeal. Affirmed.

A. N Sullivan, for appellants.

Byron Clark and C. A. Rawls, contra.

OLDHAM C. BARNES and POUND, CC. concur.

OPINION

OLDHAM, C.

This action was begun in the district court of Cass county on the 13th day of August, 1898, by Peter Halmes, for the purpose of restraining the sheriff of Cass county from levying an execution on certain real estate belonging to said Halmes. George E. Dovey, the judgment creditor, was also made a party defendant. The material facts, as appear by the record, are that on April 9, 1888, said George E. Dovey recovered a judgment in the district court of Cass county against one Thomas for the sum of $ 1,780.95. At the time of the rendition of the judgment, Thomas was the owner of the real estate involved in this controversy, but conveyed the same by deed to one Nicholas Halmes on July 17, 1888. On July 21 1888, Dovey took out an execution on this judgment, and levied on some personalty, but did not levy on the real estate. On July 9, 1891, an alias execution was issued, on which, according to the testimony of the clerk of the court there was made no return thereof. These were the only executions issued on this judgment until July 7, 1898, when the execution was issued which is the subject of this action. In the meantime, viz. on or about June 16, 1898, Dovey procured a revivor of this judgment, which, according to his own theory, had become dormant. The petition alleges and the evidence shows that on July 14, 1896, said Peter Halmes acquired the legal title to this real estate by a deeded conveyance from Nicholas Halmes. In fact, this is conceded; but Dovey claims that by reason of the fact that there was a suit begun on April 3, 1893, by said Nicholas Halmes against said Dovey for specific performance of an alleged contract concerning this land, which suit was not terminated until April 15, 1898, that his right to issue execution was suspended during the pendency of this action, and that the judgment did not become dormant in fact, and he had not, therefore, lost his judgment lien on said land. This contention was tried, and the court found in favor of Halmes and rendered a decree perpetually enjoining the levy of an execution on said lands to satisfy said judgment. From this decree, Dovey appeals to this court.

The main question presented, then, is, was the right of Dovey to take out an execution on his judgment against Thomas suspended during the pendency of the action for specific performance brought by Nicholas Halmes against Dovey? In that suit Thomas was not a party. The validity of the judgment of Dovey against Thomas was not assailed....