Howe v. Sears

• Decision Date: 18 April 1906
• Docket Number: 1697
• Citation: 30 Utah 344,84 P. 1107
• Court: Utah Supreme Court
• Parties: HOWE v. SEARS et al. [*]

84 P. 1107

30 Utah 344

HOWE v. SEARS et al. ^[*]

No. 1697

Supreme Court of Utah

April 18, 1906

APPEAL from District Court, Third District; M. L. Ritchie, Judge.

Action by Richard Howe against Isaac Sears and another. From a judgment for defendants; plaintiff appeals.

REVERSED AND REMANDED.

J. H Moyle for appellant.

APPELLANT'S POINTS.

The statute of limitations on judgments does not commence to run until the expiration of the time within which an appeal may be taken. A judgment is not final so as to support an action thereon while the judgment debtor retains the right to appeal therefrom or prosecute proceedings for a new trial. (Feeney v. Hinckley, 134 Cal. 467, 66 P. 580; Harrier v. Bassford [Cal.], 78 P. 1038; 4 Current Law, 320.)

In Feeney v. Hinckley, supra, the court quotes the California statute relative to when an action can be commenced and what constitutes a final judgment, and the time during which an action is pending, these statutes are identical in letter or substance with the following sections of our statutes: (Sec 3129, C. L. 1888; sec. 2855, Rev. Stat. 1898; sec. 3339, C L. 1888; sec. 3183; Rev. Stat. 1898; sec. 3706, C. L. 1888; sec. 3490, Rev. Stat. 1898.)

"An action will not lie upon a judgment until it has become final. Until that time has arrived, no cause of action upon the judgment has accrued. (Hills v. Sherwood, 33 Cal. 474, 479; Gilman v. Ins. Co., 65 Cal. 63, 2 P. 882; Harris v. Barnhart, 97 Cal. 546, 32 P. 589; Naftzger v. Gregg, 99 Cal. 83, 37 Am. St. Rep. 23, 33 P. 757; In re Blythe, 99 Cal. 472, 34 P. 108; Webb v. Buckelew, 82 N.Y. 560, 3 Current Law, 1449.)

"A limitation is unreasonable which does not afford full opportunity for the enforcement of the rights upon which it operates." (4 Current Law, 447; 9 Enc. Pl. & Pr., 451.)

A judgment must be final and definite, and for a specific sum. If anything is left to be determined it is not a final judgment or judgment lien, it is a mere contingency and not effective as a judgment. (Freeman on Judgments [3 Ed.], sec. 340; Hobbs v. Duff, 23 Cal. 623; Chapin v. Broder, 16 Cal. 403; Weil v. Howard, 4 Nev. 826; Culver v. Rogers, 28 Cal. 520; Moss v. Odell, 66 Cal. 580, and cases cited; Russell v. Hanks, 9 Utah 313; 2 Black on Judgments, sec. 959; England v. Lewis, 25 Cal. 358.)

The judgment is not a lien, and can not be enforced, or execution issue until the deficiency is determined and the amount docketed. (Russell v. Hanks, 9 Utah 309, 313; Chapin v. Broder, 16 Cal. 422, 423; Hobbs v. Duff, 23 Cal. 623; Weil v. Howard, 4 Nev. 628; Hibberd v. Smith, 50 Cal. 511; Hunt v. Dohrs, 39 Cal. 304; Biddle v. Brizzolara, 64 Cal. 363.)

It is a rule of the civil law that time begins to run from date when creditor has a perfect right to prosecute his demand, and the same rule holds in English and American statutes of limitations. (Buswell's Limitations and Adverse Possession, sec. 27; Pomeroy's Eq. Jurisprudence, sec. 112; Wills v. Gibson, 7 Pa. [7 Bars.] 154.)

The statute of limitations does not commence to run until the judgment is entered and recorded. (Fremont v. Farrington, 54 Cal. 273; Herrlich v. McDonald, 38 P. 360, and cases cited; Crim v. Kissing, 89 Cal. 491; Trenouth v. Farrington, 54 Cal. 273; Crim v. Kissing, 89 Cal. 487; Wakefield v. Brown, 38 Minn. 361; Underwood v. Green, 56 N.Y. 247.)

Stewart & Stewart & Budge for respondent.

RESPONDENT'S POINTS.

There is no question but that the judgment signed September 6, 1895, and filed, docketed and recorded September 12, 1895, was a full, complete and final judgment, and was the only judgment rendered in favor of the plaintiff and against the defendants, and that the deficiency sued upon by the plaintiff in this action was not a judgment. (Condee v. Barton, 62 Cal. 5; 17 Am. & Eng. Ency. Law [2 Ed.], 768; Crim v. Kissing, 89 Cal. 487; Leviston v. Ewan, 33 Cal. 483; 1 Black on Judgments, sec. 1; Watson v. Mayberry, 49 P. 481; Smith v. Pegg, 69 N.W. 489; McCaskill v. McKinnon, 28 S.E. 265; Culver v. Rogers, 28 Cal. 520; England v. Lewis, 25 Cal. 349.)

We think it is clear that the alleged judgment sued upon and relied upon by the plaintiff is no judgment at all, and that no competent evidence is before the court that the alleged "deficiency judgment" entered on the 14th day of October, 1895, was or is a judgment. The deficiency was not itself a judgment, but merely the balance unpaid on the judgment rendered September 6, 1895, and docketed September 12, 1895. But even though the court should take the view that there was such a thing as a "deficiency judgment," upon which an action could be based, we do not think that it is a judgment to which section 2874 is applicable, but so far as the statute of limitations is concerned must be considered as a part of the judgment rendered September 6, 1895. (Freeman on Judgments [3 Ed.], sec. 433; Faber v. Hovey, [Mass.] 19 Am. St. Rep. 399; Woodward v. Carson, 86 Pa. 176; Mason v. Cronise, 20 Cal. 212; Freeman on Judgments [3 Ed.], sec. 435, pp. 756-7; Id., sec. 432, p. 750; 2 Black on Judgments, sec. 960.)

STRAUP, J. BARTCH, C. J., and McCARTY, J., concur.

OPINION

STRAUP, J.

This is an action on a judgment. The court found that it was barred by the statute of limitations. The judgment on which this action is founded was entered September 12, 1895, decreeing the foreclosure of a mortgage in favor of this plaintiff and against these defendants, ordering a sale of the mortgaged premises, and providing for a deficiency judgment to be docketed and entered against the defendants, if the sale of the mortgaged premises be insufficient, as shown by the officer's return, to satisfy the judgment. The order of sale of the mortgaged premises was issued the following day. The property was sold October, 9, 1895. On the officer's return, showing a deficiency, a judgment therefor was docketed and entered against the defendants on the 14th day of October, 1895. This action on the judgment for the unpaid deficiency was commenced September 15, 1903. The period prescribed by the statute for the commencement of an action on a judgment is eight years. Section 2874, Revised Statutes 1898. If the statute began to run from the entering of the judgment, this action is barred by three days. If it did not begin to run until the deficiency was ascertained, it is not barred. This presents the decisive question.

Section 2855, Revised Statutes 1898, provides that civil actions may be commenced only within the periods prescribed "after the cause of action shall have accrued." Section 3460, Comp. Laws Utah 1888, in force at the time the judgment of foreclosure was had, provides that there can be but one action for the recovery of any debt or the enforcement of any right secured by mortgage upon real estate, and it must be in accordance with the chapter providing for the foreclosure of mortgages. Provision is made for the sale of the mortgaged property to be applied on the amount found due.

"And if it appear from the return of the officer making the sale that the proceeds are insufficient, and a balance still remains due, judgment can then be docketed for such balance against the defendant or defendants, personally liable for the debt, and it becomes a lien on the real estate of such judgment debtor, as in other cases, on which execution may be issued."

It is only by virtue of the statute that a money judgment can be rendered by a court of equity in a foreclosure proceeding, and the statute only provides for a deficiency judgment, for the balance remaining due, after a sale of the mortgaged property has failed to produce the full amount found to be due. (Bouton v. Cameron, 205 Ill. 50, 68 N.E. 800.) Independently of some statute the mortgagee was required to bring a separate action for a recovery of any deficiency, after exhausting the mortgaged property. (2 Jones, Mortgages [6 Ed.], sec. 1571.) While under the statute full relief is given in one action, where theretofore two actions were required, yet the mortgagee cannot recover a personal judgment, and is not entitled to have one entered or docketed against the debtor, until he has exhausted the mortgaged property and the deficiency is ascertained. (Donaldson v. Grant, 15 Utah 231, 49 P. 779; Russell v. Hank, 9 Utah 309, 34 P. 245; Crim v. Kessing, 89 Cal. 478, 26 P. 1074, 23 Am. St. Rep. 491; Bank v. Casaccia, 103 Cal. 641, 37 P. 648; Hopkins v. Warner, 109 Cal. 133, 41 P. 868; Barbieri v. Ramelli, 84 Cal. 154, 23 P. 1086.)

The foregoing authorities also hold, that, under a statute such as we have, the mortgagee may not waive his security and sue on the debt alone. He is first required to exhaust the mortgaged property. The mortgagor cannot personally be called upon or compelled to pay any part of the debt secured by mortgage, until sale of the mortgaged premises; and the liability which shall then accrue against him, is a liability to pay only the deficiency which shall appear on the officer's return. His liability is contingent on the fact that a sale of the property shall fail to satisfy the debt and costs. It is, however, argued that the statute authorizes only a single decree which determines the amount due, provides for the sale of the mortgaged premises, and a deficiency judgment over against the persons personally liable for the debt, and, therefore, the judgment is but one judgment, and the statute of limitations must be held to run from the time of its entry. But

"There was no personal judgment for this amount, nor was there anything, in the nature of a personal judgment, beyond the mere direction for the issuance of an execution in the event of the insufficiency of the mortgaged property to pay the debt. The whole matter was contingent, indefinite, and uncertain, and, so long as this continued to be ...